As lawyers, we are required by the Law Society of Ontario in some, but, not all, circumstances to verify the identity of our clients by looking at identification documents. We are generally not required to verify the identity of our clients by looking at identification documents if there is no money changing hands as part of our work. Often in the context of helping clients with estate planning like preparing a Will; a Power of Attorney for Property or setting up a Trust will be the type of work that does not require that we verify the identity of our clients by looking at identification documents.
This article provides information about why I think it is good practice and good service to obtain identification documents of our clients even if it the circumstances of the retainer are such that the Law Society of Ontario does not require we do so. It is something that I believe distinguishes estate planning from just getting a Will and Powers of Attorney prepared.
As estate planners, it is important when we help our clients that we are aware that we and they live in a world that is becoming increasingly more automated and formalistic. Setting up and then accessing even our own in person and on-line services for our personal selves is becoming increasingly more difficult. I think it fair to say that as estate planners our job is to help the clients who come to us for help to have documents in place so that someone else - the substitute decision maker or makers of our client will be able to look after things for them while alive or after our client has died. Preparing documents that have the correct name or names of our client and of our client’s substitute decision makers is an important part of that and more important now than it might have been a decade or two ago.
An important change has been the evolution of various requirements designed to stop the wrong people from doing the wrong thing for the wrong reason. As part of the gate keeping required of many service providers in this new Anti-money laundering (AML) anti-scamming; anti-fraud; Artificial Intelligence (AI); Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) world - what I sometimes call the "Anti-World" is a person's name. Layered onto this is the reality that there are more and more organizations in a greater number of circumstances that are being added to the list of those required to comply with AML and FINTRAC requirements. Our client’s substitute decision makers will also be subject to those and other systems that are set up to at least try to ensure that the right people are doing the right thing for the right reason and to prevent the wrong people from doing the wrong thing for the wrong reason.
When another party is tasked with verifying that the substitute decision maker is the right person doing the right thing for the right reason, an important and often critical starting point is the name of our client as grantor and/or as testator and the name of the substitute decision maker as known to the entity such as the bank; or Canada Revenue Agency and as shown on official government issue identification.
Some things to know about names are:
- Names people use are not always the same as the name on any of their official government issue ID - like a Driver’s licence; Passport; Birth Certificate; Marriage Certificate or Death Certificate;
- Names shown on one piece of official Government Issue ID may be different from the name shown on one or more other pieces of official Government Issue ID
- Even on ID mistakes are made to name spellings, for example. Sometimes first names are recorded as middle or last names. In some cases, the name of a person who comes from or came from another country, especially one where English is not the primary language, get mixed up or just plain misspelled. If your client has an issue like this, you, as their lawyer might be able to help them to determine what steps your client might be able to take to address the issue. At a minimum, it is likely to helpful for you as their lawyer to be aware that the issue exists. If you and your client know the reason for the issue, you making note of it somewhere and being as specific with dates and institutions involved may save hours of time for your client and/or for their substitute decision maker.
- Name changes can happen by common usage when people get married and decide to start using the name of their spouse and sometimes in that case, a name on title to property or on a bank account might be the married name, but, might not match any official Government Issue ID
- Sometimes people use their middle name as though it was their first name. Sometimes important documents like a deed to property was prepared and registered years ago or a service was set up using the usual name and not a name that matches any ID a person has.
Why do names and ID matter?
- It is challenging and in some cases impossible to access some services like Legal Services; Real Estate Services; and Banking Services if you do not have official Government Issue ID with a photo that is unexpired and that is not a health card. This is not made easier when the person accessing the services is doing so on behalf of someone else.
- Even if your client has official Government Issue ID with a photo that is unexpired and has your client’s legal name on it, if your client did not use a name that matches the name on that ID exactly, it can take several weeks of time and additional steps that can take hours to complete the process to access services like My Account with CRA to access the client’s own personal information on-line. This again, is not made easier if the person trying to gain access is the client’s substitute decision maker.
- If a financial institution such as a credit card company; bank; or credit union; does not have the client’s Social Insurance Number and satisfactory identification for them, they may and likely will freeze the person’s account and may do so without notice; warning or explanation to your client or to anyone the client is making payments to. A substitute decision maker is less likely to be told of an issue like this even when acting on behalf of your client.
- If the name of your client’s substitute decision maker or makers, such as the people your client has named in a Power of Attorney for Property to look after the client’s financial affairs if the client cannot or just needs help does not match their name as shown on their official Government Issue ID the substitute decision make or makers may and likely will have to take additional steps including providing additional documentation or a statutory declaration to be able to help your client. The same can happen in the case of the person your client named as your client’s Estate Trustee, also called Executor, or Trustee in the client’s Will.
What does this mean for you as an Estate Planner?
If your goal is provide service in a way that gives your clients’ peace of mind and that is most likely to make their lives and those of their substitute decision maker easier, it is important that you know what your client’s legal name is and also that of their substitute decision maker. It is helpful to ask your client what name your client used when your client set up existing services and if the name does not match any name shown on any of your client’s official Government Issue ID, you can suggest that your client consider editing your client’s name with the service so that the name does match a name as shown on official government issue ID. It is helpful to ask for ID from your client and to ask if your client’s substitute decision maker has official Government Issue ID. If your client’s substitute decision maker is willing to show you their ID, look at it and copy it for your file. If your client or your client’s substitute decision maker does not have any official Government Issue ID that is unexpired and has a photo on it, it is helpful to suggest that they get one as soon as possible. In Ontario, if you have lost your Driver’s Licence or never had one, you can get an Ontario ID Card. There is a link below for information on how to contact Service Ontario for information about this.
https://www.ontario.ca/page/ontario-photo-card
To summarize:
Having names and official Government Issue ID that is unexpired and with a photo on it matters because it can affect your client’s ability or that of a substitute decision maker of your client’s to access services such as the ones described above. It can make regaining access to on-line services challenging. Verifying ID and being attentive to the names used including adding also known as names to the documents that we as lawyers prepare for our clients, can make it much easier for the people our client’s choose to have help them. While our clients are still capable of looking after things themselves, life for them can still be easier if they are aware of the ways in which names and ID can be important in their day to day interactions. Helping our clients to taking steps now to address name and ID related issues can be a big help to them and their substitute decision makers with getting and/or maintaining access to services and on-line accounts and in other day-to-day interactions.
About the Author
Kathleen Robichaud is a lawyer in Manotick practicing as a solicitor. Her work includes estate planning. She is the co-editor of the Newsletter for the Trusts and Estates Section of the Ontario Bar Association.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.