Accessible Practice: When Your Client Cannot Sign Documents
A version of this article was first published in the June 2017 ARCH Alert issue
As lawyers, we depend a lot on the power of a signature. Our solicitor-client relationship does not begin until our client agrees to and signs a retainer. We require clients to sign everything from consent to release information forms, affidavits, and settlement agreements, to powers of attorneys and wills just to name a few. A signature is an acknowledgment by the client that he or she understands what the document is stating and is indicative of a client’s consent or a client’s instruction to their legal counsel to act in a specific manner on their behalf.
For some clients, however, a disability may prevent them from physically being able to sign their name. For example, some persons with vision disabilities may be able to sign their name but not see and verify whether the signature is consistent. These clients often encounter barriers to entering into contracts, obtaining financial services, accessing social programs, executing legal documents, obtaining medical treatments, and many other acts.
It is important to recognize that a client’s physical ability to sign their name is not indicative of their legal or mental capacity to sign. Many persons have physical disabilities which may prevent them from signing, but they nevertheless have the legal and mental capacity to understand what they are signing and give informed consent or agreement.
Even though this may seem obvious, it is unfortunately not uncommon for many persons with disabilities to experience attitudinal barriers regarding their legal or mental capacity because they cannot physically sign documents. Such assumptions are very concerning because they can lead to clients with disabilities being denied their right to make decisions and have control over their own lives.
So what, if any, alternatives exist for your client who has legal capacity, but who, because of a physical or sensory disability, cannot sign documents?
Alternative Methods to Signing
In accordance with Canadian common law jurisprudence, what is most important to consider is the intention of the person who signed or wants to sign the document and not necessarily the methodused to execute that signature. A person’s intention to validate a document, agree to the terms set out in a document, or agree to do or be legally responsible for doing the acts that are written in the document is what makes a signature legally valid and binding. A written signature is just one way of showing that a person agrees to what is written in a document.
The importance of intention was articulated by the court in R v. Fox. In Fox, the accused brought a motion to contest the validity of a summons because it was not signed by the Justice himself, but rather by a signature stamp. The Court held that the summons was valid, importing the English case of Bennett v Brumfitt which provides:
“The ordinary mode of affixing a signature to a document is not by the hand alone, but by the hand coupled with some instrument, such as a pen or pencil. I see no distinction between using a pen or a pencil and using a stamp, where the impression is put upon the paper by the proper hand of the party signing. In each case it is the personal act of the party, and to all intents and purposes a signing of the document by him.”
The Court in Bennett went on to adopt Stroud’s Judicial Dictionary, 3rd ed. Vol. 4, definition for signature:
“A signature is the writing or otherwise affix, a person’s name, or mark to represent his name by himself or by his authority, with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed.”
1) The Signature Stamp
A signature stamp may be a useful alternative for clients who have conditions which may worsen over time, or for persons who can sign but because of their disability they cannot ensure that their signature is consistent every time they sign.
Of course, in order to create the signature stamp, which is a replica of a person’s signature, the client must be able to write their signature at the time they want to get the stamp made.
With respect to the case law, Ontario courts have found that signature stamps are an acceptable alternative to a written signature, at least on a will.
In Clarke Estate (Re), the Court was asked to decide whether signing a will with a signature stamp satisfied the criteria set out in the Succession Law Reform Act, (SLRA) and rendered the will valid. Brown J. drew on the test formulated in Re Bradshaw Estate, where the court asked:
(i) Were the markings on the will made by the testator, and
(ii) Were they intended as his signature and to represent the best that the testator could do by way of writing his name under his physical circumstances?
In applying this test to the circumstances before him, Brown J. found that the testator made the signature stamp, he had intended for it to be his signature and to represent the best way of writing his name, and as such, it could be a valid alternative to a written signature on a will.
It must be recognized, however, that while signature stamps provide a helpful alternative for many people, they also carry a risk of inappropriate or fraudulent use. Ontario courts have considered situations in which signature stamps were misused. For example, in MacDonald v Sun Life Assurance Co of Canada, an Ontario court refused to admit evidence from a physician because it appeared that the physician’s signature stamp had been misused. The physician had delegated the use of his signature stamp to a health centre for signing a medical report. Changes were made to the medical report, however, that the physician was not made aware of and his signature was affixed to it.
It is important to note here that there are circumstances aside from fraud or misuse, in which the court has found that stamp signatures were not appropriate and would not be treated as equivalent to a signature. In R. v. Welsford, the Ontario Court of Appeal found that the use of stamp signatures could not be extended to the signing of informations or the proper admission of a solemn oath by a jurat. This was upheld by the Supreme Court of Canada, but the Court noted their decision does not apply to all circumstances, just to the present matter where informations cannot be executed by stamp signatures.
2) A Mark
Another alternative to a written signature is a mark made in the presence of witnesses. A person or client who cannot write their signature can instead make an ‘X’, a thumb, finger or toe print, or any other mark in the presence of one or more witnesses. The witness(es) may then sign an affidavit stating who they are, that they witnessed the person make the mark, and that the person indicated their intention to agree to what is written in the marked document.
The presence of witnesses and their affidavits provide evidence and assurance that the person themself made and intended to make the mark. This is useful in case someone challenges the validity of the mark. It also provides an important safeguard against someone else fraudulently or mistakenly marking a document on behalf of the person with the disability. On the other hand, relying on witnesses can create barriers for persons with disabilities to exercise their decision-making rights independently.
The Canada Pension Plan is an example of a law which expressly allows for the use of signature stamps in very specific circumstances. It permits an applicant for a Social Insurance Number who is unable to make their own signature to make a mark instead in the presence of witnesses. The witnesses’ names and signatures must also be shown on the document.
3) Signature Agents
A third alternative to a signature is the use of a signature agent. A person who cannot physically sign directs another person to make the signature on their behalf. The Criminal Code (section 241.2(4)) and the SLRA (section 26 and section 4(1)) both contain provisions which allow for the use of a signature agent. With regards to medical assistance in dying, the Criminal Code, at section 241.2(4) states that if a person requesting medical assistance in dying is unable to sign the request, another person may do so in the person’s presence, on the person’s behalf and under the person’s express direction. The agent must meet certain criteria aimed at preventing abuse or misuse. At sections 26 and 4(1), the SLRA instructs that for a will to be valid, it must be signed by the person or by another person who is in the person’s presence and under their direction.
A signature agent may be a helpful alternative for some persons with disabilities who are not physically able to sign, however, as with making a mark in the presence of witnesses, having to rely on another person to sign on someone’s behalf can also create barriers for persons with disabilities when exercising their decision-making rights independently.
4) Electronic Signatures
Electronic signatures, also known as e-signatures, may also provide an alternative to a written signature for some persons with disabilities. There are a number of e-commerce laws and privacy laws that exist that recognize the legal validity of certain types of electronic signatures. The Personal Information Protection and Electronic Documents Act (PIPEDA), for example, allows persons to execute documents with an electronic signature subject to a set of conditions including that the signature is unique to the person signing the document. It is also important to note that there are specific legal documents, including wills and powers of attorneys, among others that cannot be executed by way of an e-signature. It is recommended that persons who want to use electronic signatures get legal advice before doing so to ensure that their electronic signature will be legally valid. As new technologies are created, a greater range of alternatives to signing documents may emerge for persons who are not physically able to sign.
Conclusion
It is difficult not to overstate the role signatures play in our day to day legal practice. It is important to recognize, however, the potential barriers a traditional signature erects to clients or potential clients who are not able to sign because of a physical or sensory disability. In offering alternative methods to signing, our services become more accessible to persons with disabilities who have the mental and legal capacity to make decisions for themselves in various areas of life, but who cannot physically sign documents.
ARCH offers a lawyer to lawyer summary advice service. If you have questions about this post, or matters related to providing accessible legal services to clients with disabilities, please call ARCH to schedule an appointment and speak with an ARCH lawyer: Telephone: 416 482 8255 or 1 866 482 2724; TTY: 416 482 1254 or 1 866 482 2728.