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The Trust and Estate World Post-Pandemic: The Way Ahead

It is the beginning of a new year and time to reflect on the last three years or so, what impact the pandemic has had on the trust and estate world, and what the way forward will be.

So much has changed in so short a period in how professional advisors can serve their clients. Video meetings are now a mainstay, in addition to the return of in person meetings. Wills and powers of attorney can now be witnessed and signed remotely with wet ink using a video platform in many jurisdictions, including Ontario, as well as in person. In some jurisdictions, including British Columbia, and notarial wills in Quebec, wills can be signed completely electronically without wet ink. More routine documents are now commonly signed digitally using a software program, such as DocuSign.

As well, forced by the pandemic, the court system and court procedures have changed – some might say more in the last three years than in the last one hundred. In Ontario and many other jurisdictions, affidavits can be sworn remotely using a video platform. Mediations and court appearances, including motions, hearings and trials are being conducted by video. Many legal processes have been updated, streamlined and digitalized. We have noted the growing trend for some clients to now prefer to receive only digital copies of their final estate planning documents and no hard copies. Much professional development is done remotely, without physical attendance, saving time and money.

The net result of these changes, initially forced by the pandemic, but now part of the way we practice, requires a proper evaluation. No doubt, all of these changes have allowed for more flexibility and options for both clients and professionals. We can so easily (and usually seamlessly, subject to the usual technical glitches we have all grown used to) now communicate using video platforms wherever our clients may be in the world, and not be bound by geography. Clients can be here, or go there, often for extended periods of time, and their matter proceed, documents finalized and signed virtually, as we are no longer controlled by the seasons and the calendar.

Clients can easily communicate in video meetings in the comfort and convenience of their homes. In a prior blog, I looked at many of the issues raised by communicating by video as opposed to in person in “The Zoom Boom.”

Because we can does not mean we should. The crux of the matter is that digital technology should not dictate, and we should consider it as one more very useful tool in our toolbox. Each method of communication, whether it be a telephone call, email message, text message, voicemail message or in person meeting has a place and its own pros and cons.

In my view, it’s important for the professional advisor to consider, evaluate and provide leadership based on their judgment and experience on which mode of communication is best suited for the particular matter or task at hand each time they communicate. There should be “no one size fits all”, and the professional advisor’s convenience should not control or dictate. Emails may be the way to go for a lot of communication, but picking up the telephone or a video meeting can be preferable for some, and for still others an in person meeting, as opposed to a virtual meeting, absolutely essential.

The enshrining principle to consider in making these choices is always what is in the best interests of the client—and what is the client comfortable with. As professional advisors, we must accommodate all of our clients, and provide appropriate options to them, and in some cases strongly suggest an in-person meeting should be held, in particular for first meetings where there is no established relationship, or where there are highly sensitive issues, capacity issues, or others that can lead to a challenge to a client’s estate plan.

Some clients are not comfortable using video platforms, virtual meetings or emails for a variety of reasons. We must be particularly attuned to our client’s needs, and make sure we accommodate them on a one-on-one basis, and provide them with options that suit them, and not take away options, or put pressure on them to use what they do not prefer, or may not be comfortable with.

I am struck by a situation I witnessed a few months back at Newark airport, at the height of the airport mayhem that occurred as more people started to travel again. As I enjoyed my breakfast after ordering it on the required app to do so, a gentleman in his 70s tried to order a cup of coffee by asking the waiter who perfunctorily told him he had to use the app.

The man struggled for a bit with his phone, the waiter did not volunteer to help him, and after a few minutes he called the waiter back and said with some frustration and in a pleading tone “Can’t I just tell you I want a cup of coffee?” to which he received a negative reply. He then left, without getting his cup of coffee. A simple cup of coffee denied to a customer because he could not navigate the technology!

Let’s not go down that path. The approach we use as professional advisors has to be different and guided by what is in the best interests of the client. That means looking at each client’s unique needs and situation and addressing them. And not just in the quality of the advice itself, but as well in how it is provided and delivered, using technology and all it can offer to enable, but never dictate.

-Margaret O’Sullivan

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.
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