WHAT IF YOU CAN’T PHYSICALLY SIGN A LEGAL DOCUMENT?
By Faisal Kutty
Being able to sign documents is critical in our society. In fact, many people assume that legal documents may not be binding without signatures. This belief, of course, comes from the fact that a signature is seen as an acknowledgment by the individual that he or she understands what the document is stating and is indicative of the person’s consent or direction to act in a specific manner on his or her behalf.
What happens if a person is physically unable to sign their name? Fret not, there may be ways around this.
It must be understood that a person’s inability to physically sign their name does not necessarily mean that the person is legally or mentally incapable of consenting to or approving a document or authorizing or directing someone to act on that person’s behalf. Indeed, it is possible that a person may be physically incapable of signing, but they nevertheless have the legal and mental capacity to understand what they are giving informed consent to, authorizing, approving or directing someone or something.
The common law is very clear that what is important is the intention of the person who signed or wishes to sign the document. The method employed to affix or execute the signature is not necessarily critical. 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 the signature legally valid and binding. A written signature is just one way of showing that a person agrees or consents to the document and its contents.
As rational and logical this seems, unfortunately societal assumptions and attitudes get in the way sometimes to deny persons with disabilities from being able to make decisions and direct how they wish to control their own lives.
If you or your loved ones find yourself in such a predicament when you have legal capacity, here are some alternatives to the traditional signature that you can consider:
Each of these alternatives found in the common law, have been upheld by Ontario courts or can be found in legislation.
Alternative Methods to Signing:
1) The Signature Stamp
A signature stamp may be a useful alternative for clients who have conditions which may worsen over time. It is also a possible alternative for persons who can sign but due to some conditions or disability may not be able to maintain consistency to their signature.
Of course, the stamp would have to be prepared when the person is able to provide the replica signature to typeset and create the signature stamp. One must also be wary about the fraudulent misuse of stamps.
2) A Mark
The person who cannot physically sign their name can “sign” using a mark in the presence of witnesses. The mark can be an ‘X’, a thumb, finger or toe print, or any other mark made in the presence of witnesses. The witnesses should then swear an affidavit: 1) confirming their identities; 2) confirming the identity of the “signing” party; 3) indicate that they witnessed the person make the mark; and 4) swear that the person indicated their intention to agree to what is written in the marked document.
3) Signature Agents
You may wish to use a signature agent. Under this alternative, a person who cannot physically sign can direct another person to act as their agent to write the signature on their behalf. For instance, the Criminal Code (section 241.2(4)) and the Succession Law Reform Act (section 26 and section 4(1)) both contain provisions which allow for the use of a signature agent. Sections 26 and 4(1), the SLRA provides that for a will to be valid, it must be signed by the person or by an agent (another person) who is in the person’s presence and under their direction.
Again, we would recommend that witnesses swear an affidavit confirming the details to avoid or at least minimize any potential issues.
4) Electronic Signatures
More recently there is another alternative that is growing in popularity and that is the electronic signature. 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.
There have also been some recent changes with respect to virtual signatures arising in the context of Covid19.
Conclusion
Inability to physically sign a document should not prevent you from being able to control and direct your own life, provided that you have legal capacity to appreciate and understand the nature and consequences of what you are doing.
Should you wish to consult about the specifics of your situation, please feel free to reach out to us at info@kuttyassociates.com
This discussion is based on Canadian law. The information provided herein is for general information purposes only. It is not intended to provide legal advice or opinions of any kind and may not be used for professional or commercial purposes. No one should act, or refrain from acting, based solely upon the information provided here or on our website or social media pages without first seeking appropriate legal or other professional advice.
