Review of Alberta and British Columbia Legislative Changes Regarding Annuities, Life and Living Benefits Insurance

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1 September 2012 Advocis 390 Queens Quay West, Suite 209 Toronto, ON M5V 3A2 T F Review of Alberta and British Columbia Legislative Changes Regarding Annuities, Life and Living Benefits Insurance Table of Contents Introduction/Executive Summary 2 Legislative background Alberta 2 Legislative background British Columbia 2 Summary of the new rules 2 Who will be affected by the new rules? 3 Will consumers need to contact their insurers to update their contracts 4 Impact of the changes on the industry 4 Changes of particular importance for advisors 4 1. Overview of changes to contracts and policies and recommended advisor actions 5 a. Life Insurance & Accidental Death Insurance (ADI) 5 b. Critical Illness & Disability Insurance 6 c. Group plan health insurance 7 d. Annuities: Payout Annuity / Deferred Annuity (RSP/LIRA/Non-Registered/TFSA or Income Annuity (RIF/LIF/RLIF) 7 2. New limitation and notice periods critical illness, disability and life insurance 8 New timeframes for launching legal action 8 Notices to policy owners 8 3. Changes to misrepresentation and incontestability provisions critical illness, disability and life insurance 8 Misrepresentation and incontestability provisions 8 4. Reinstatements life insurance 9 5. Application materials and replacement policies critical illness, disability and life insurance 9 6. Beneficiary designations critical illness and disability insurance 9 Naming a beneficiary 10 Secondary or contingent beneficiary designations 10 Irrevocable beneficiaries 10 Naming a beneficiary for the survivorship benefit only 11 Return-of-premium benefits payable upon death 11 Naming a beneficiary for return-of-premium at expiry benefit only 11 Beneficiaries under group plans 11 Beneficiary designations outside of Alberta, British Columbia, Manitoba and Quebec Secondary/contingent ownership on critical illness, disability and accident and sickness insurance policies Change of residence critical illness, disability and life insurance 13 Policy owner moves residence Insurer Forms Revisions 13

2 Introduction/Executive Summary On July 1, 2012, the new Alberta and British Columbia Insurance Acts and regulations (collectively, the new rules ) took effect. The two provinces consulted closely with one another and, as a result, the changes to each province s insurance laws are substantively similar to the other s. Legislative background Alberta Alberta began consultations on its Insurance Act and pursuant regulations in 2009 with the publication of the paper Consultation on Proposed Regulations for the Amended Insurance Act. The paper led to changes designed to enhance consumer protection by modernizing the legal framework that regulates insurance contracts. On July 14, 2011, the Alberta government proclaimed the Insurance Amendment Act, 2008 (Bill 11), which came into force on July 1, In the main, this legislation updates the Uniform Life and the Uniform Accident and Sickness sections of the Insurance Act, which contain the rules for insurance contracts. In announcing the new rules, the Alberta government stated that these changes modernize the framework for insurance contracts, strengthen consumer protection, and address issues identified by stakeholders, including consumers, legal counsel and insurers. 2 Legislative background British Columbia As noted, changes similar to those in Alberta have been made to British Columbia s insurance legislation. In October 2009, amendments to the Insurance Act were passed by the Legislative Assembly of British Columbia as Bill 6, the Insurance Amendment Act, An Order in Council (OIC) brought into force the provisions of the Insurance Amendment Act, 2009 and enacted regulation under the Insurance Act to support the statutory amendments. 4 As in Alberta, the new rules came into effect on July 1, Summary of the new rules The new rules apply to policies and contracts for: 1 In Alberta much of the relevant statutory changes are to be found in Alberta s Insurance Act amendments (Bill 11). As well, the Transitional (Insurance Amendment Act, 2008 Part 5) Regulation (Alberta Regulation No. 185/2011), which provides guidance on how existing and new insurance contract insurance claims are handled under the previous and new provision of the Act. 2 Ibid. 3 B.C. Ministry of Finance, Insurance Act Reforms: Changes to the British Columbia Insurance Act and Regulations, at 4 B.C. Ministry of Finance, Insurance Act Regulations Discussion Paper (February 2010). Accessible at 2

3 life insurance, including accidental death insurance (ADI), health insurance, including disability insurance and critical illness insurance, as well as group health plans, and annuities, including payout and accumulation annuities. 5 The changes: allow for the designation of beneficiaries on critical illness and disability insurance policies, allow for secondary/contingent ownership on critical illness and disability insurance policies, require the provision of a copy of the application and application material for critical illness, disability and life insurance policies to the policy owner upon issuance of the policy, allow for the first replacement copy of the policy at no cost for critical illness, disability and life insurance policies under the respective provincial insurance acts, introduce new limitation periods to lengthen the timeframe a client has to pursue legal action in the event a claim is denied, provide guidance for changes to misrepresentation and incontestability provisions, and mandate, for life policies which lapse for non-payment, automatic reinstatement with no underwriting within 30 days following the end of the contractual grace period. Who will be affected by the new rules? The changes affect Alberta and British Columbia residents who are issued new policies on or after July 1, 2012 (contracts) and who have inforce policies on or after July 1, The following information and analysis derives from the legislation and regulation, and the commentary provided by Sun Life Financial, Changes to Canada-wide business practices from B.C. and Alberta Insurance Acts regulatory changes, (at v/index.jsp?vgnextoid=7785c vgnvcm d2d09frcrd&vgnextfmt=default&v gnlocale=en_ca), and Great West Life Assurance Company, Important: changes to life, living benefits insurance for Alta., B.C., (at documents/s1_ doc). 6 See Sun Life Financial s materials at eef327accd758310vgnvcm d2d09frcrd&vgnextfmt=default&vgnlocale=en_ca. 3

4 Will consumers need to contact their insurers to update their contracts? Consumers do not need to do anything with their existing contracts. Other than where noted below, existing contracts will not be changed. Clients need not contact insurers; advisors and insurers will provide them with the necessary updates as needed. Impact of the changes on the industry With regard to these changes, one major Canadian insurance company, Sun Life Financial, has stated that [a]s other Canadian provinces are expected to enact similar changes within the next few years, we are applying most of the changes Canada-wide. 6 Changes of particular importance for advisors Policy issuance to group plan members: Upon request, plan members must be provided with one copy of the policy at no charge. Companies are permitted to charge a reasonable fee for requests of subsequent copies. Beneficiary designations (critical illness and disability insurance): As stated above, on July 1, 2012, insurers began accepting beneficiary designations for disability and critical illness benefits in British Columbia and Alberta. Beneficiaries designated on or after July 1, 2012 will be accepted for all inforce policies issued in Alberta or British Columbia, regardless of when the policy was issued. Beneficiary designations are also accepted with new business applications signed in Alberta or British Columbia on or after July 1, 2012.For provinces and territories where the law does not permit the designation of a beneficiary for these benefits, a filled-out direction to pay to a third party payee will be accepted. Claims and limitation of action (critical illness, disability and life insurance): Alberta and British Columbia have extended the limitation of action from one to two years. The new rules apply to all Alberta and British Columbia causes of action arising on or after July 1, For further clarification, this means all claims in Alberta and British Columbia, regardless of when the policy was issued, will be subject to the new limitation period as of July 1, In response to the rule changes in Alberta and British Columbia, at least one insurer (The Co-operators) has decided to apply this change across Canada and is amending policies accordingly. Contract changes (critical illness, disability and life insurance): Major insurers will manage changes to their contracts in the form of a legislative amendment rider or as a new policy provision within the policy for critical illness, disability insurance, and life insurance policies. 4

5 New 30-day grace period applies for reinstating a life insurance: Typically, there is a contractual 30- or 31-day grace period for reinstating life insurance policies. After that period, although the policy has terminated, it may now be reinstated without evidence of insurability for an additional 30 day period if the insured person is alive. Several national insurers are adopting this additional 30- day grace period for their living benefits contracts. Annuity contracts: Certain annuity contracts will be required to be updated to include a new section detailing the time limit for recovery of insurance money with a limitation notice. 1. Overview of changes to contracts and policies and recommended advisor actions After July 1, 2012, insurers issuing new contracts should have their MGAs or advisors notify their customers of the new rules, where appropriate. The tables below set out the changes required by the new rules as they are manifested in the contractual practices of a typical insurer. The tables incorporate the fact that several insurers are adopting the additional 30-day reinstatement rule for life insurance into their critical illness and disability insurance contracts. a. Life Insurance & Accidental Death Insurance (ADI) Change Contract wording Life insurance contracts and policies will have to be updated to include additional wording regarding new limitation notices, and beneficiary change warning if restrictions exist within the contract. Reinstatement After the 60-odd-day reinstatement without evidence period (based on a typical contractual period of 30 to 31 days, plus 30-day extension under the new rules), policy owners will need to apply for reinstatement with evidence of insurability based on the terms in their policy contract For ADI policies, a contingent owner can be named. Action by Advisor? None To carry out the reinstatement, advisor should have client use the insurer s form which allows for the application for policy change, reinstatement and/or reconsideration of rating. To name a contingent owner, the advisor should have client use the insurer s contingent owner change form or submit to head office a written request that is signed and dated by the client 5

6 Claims (limitation period) Insurers must include a limitation period provision in the contract, describing the time period that a client may commence a proceeding for the recovery of benefits under the policy by suing the insurer. NOTE: provincial insurance acts often require the insurer include notice of limitation wording on certain claims letters to clients. and includes the client name and policy number. Advisor need not take any action. However, clients may contact advisor to ask questions upon receipt of a denial letter. b. Critical Illness & Disability Insurance Change Contract wording Additional wording must be added to disability and critical illness contracts and policies and for Accident & Sickness (AS), where applicable. These changes include new limitation notices, and beneficiary change warning if restrictions exist within the contract. Contingent owners can be named for critical illness policies. Return on Premium on Death (ROPD) beneficiaries can now be appointed and can be made irrevocable. Grace period Although the policy terminates at the end of the grace period, a policy owner can reinstate his or her policy within 30 days of the grace period (31 days from the date the premium is due), without evidence of insurability, if the insured person is alive. Reinstatement After the 60-odd-day reinstatement without evidence period (based on a typical contractual period of 30 to 31 days, plus 30-day extension Action by Advisor? None The advisor will need to name the contingent owner in the application. If the contingent owner is not specifically indicated, the policy will be issued without a contingent owner, and the insurer s contingent owner change form will be required to appoint a contingent owner after the policy has been issued. The advisor will need to indicate the name of the beneficiary, the relationship to the insured (or policy owner if Quebec) and that the beneficiary is irrevocable in the application. If this is not done, the policy will be issued with a revocable beneficiary and the insurer s form for payee designation change for critical illness insurance policies will be required to make the change after the policy has been issued. None To carry out the reinstatement, the advisor should use the insurer s application for reinstatement of life or critical illness insurance. 6

7 under the new rules), policy owners will need to apply for reinstatement with evidence of insurability based on the terms in their policy contract. Claims (limitation period) Insurers must include a limitation period provision in the contract. Advisor need not take any action. However, clients may contact advisor to ask questions upon receipt of a denial letter. c. Group plan health insurance Change Contract wording Group health insurance contracts and policies will need to be updated with additional wording, especially with regard to Accident & Sickness (A&S). Insurers will provide examples to show how the travel provision works will be included in the group health policy effective July 1, Copy of application provided to client Major insurers will mail a new copy of the application and plan booklet to the policy owner likely in the form or an update for existing policy owners or, for new policy owners, in a welcome kit. Claims (limitation period) Insurers must include a limitation period provision in the contract. Action by Advisor? None None None d. Annuities: Payout Annuity / Deferred Annuity (RSP/LIRA/Non-Registered/TFSA or Income Annuity (RIF/LIF/RLIF) Change Contract wording Annuity contracts will be updated to include a new section detailing the time limit for recovery of insurance money with a limitation notice. Claims (limitation period) Insurers must include a limitation period provision in the contract, describing the time period that a client may commence a proceeding for the recovery of benefits under the policy by suing the insurer. NOTE: provincial insurance acts often require the insurer include notice of limitation wording on certain claims letters to clients. Action by Advisor? No action is required. Payout contracts will continue to be forwarded to advisor for delivery to the clients. No action is required. However, clients may contact advisor to ask questions upon receiving a denial letter. This memorandum now moves on to a more detailed consideration of the new rules. 7

8 2. New limitation and notice periods critical illness, disability and life insurance New timeframes for launching legal action A limitation period provision describes the time period in which one may commence a proceeding for the recovery of benefits under an insurance policy. For claims under critical illness, disability and life insurance policies in Alberta and British Columbia, the timeframe to initiate an action has been increased from one year to two years. The new rules apply to all Alberta and British Columbia causes of action arising on or after July 1, 2012, regardless of when the policy was issued. These changes lengthen the timeframe clients have to pursue legal action if their claim is denied, thereby offering strengthened consumer protection in the legal arena. As well, they make for uniformity with the provincial Limitation Acts. In total, three new limitation periods for critical illness, disability and life insurance took effect on July 1, 2012: two years from the end date of claim, two years from the last claim payment date, and six years from the date of death. Notices to policy owners In conjunction with the new limitation periods, there are legislative requirements to provide notice to the policy owner that the limitation period will soon expire: Alberta: Notice to be provided within five days of claim denial or 60 days from the date the claimant notifies the insurer. British Columbia: Notice to be provided within five days of claim denial and within 10 business days after the first anniversary of the date the insurer received notice of the claim. 3. Changes to misrepresentation and incontestability provisions critical illness, disability and life insurance Misrepresentation and incontestability provisions The new rules in Alberta and British Columbia mean that failure to disclose important information relating to increased or changing coverage under a policy makes the increase, addition or change voidable by the insurer, rather than the whole policy. 8

9 4. Reinstatements life insurance For reinstatements under a life insurance policy, the new rules require that a life policy which lapses for non-payment must be automatically reinstated with no underwriting within 30 days following the standard 30- or 31-day grace period. These rules apply to all reinstatement requests for Alberta or British Columbia residents on or after July 1, 2012, regardless of when the policy was issued. 5. Application materials and replacement policies critical illness, disability and life insurance With regard to critical illness, disability and life insurance policies, a copy of the policy, application and application materials (including any statement, medical information or record) will be provided at the time of issue for all policies issued if the policy owner resides in Alberta or British Columbia. Similarly, for group critical illness, disability and life insurance policies, an individual can obtain a copy of the group policy, minus any parts containing confidential information. Previously in Alberta and British Columbia, an individual could only access a certificate which offered very limited information about the insurance policy. The new rules also allow for the first replacement copy of the policy at no cost for critical illness, disability and life insurance policies under the Alberta and British Columbia Insurance Acts. A reasonable fee may be applied for a second or subsequent request for a replacement copy in Alberta or British Columbia. In general, if replacements are requested in other provinces, a fee will be applied. 6. Beneficiary designations critical illness and disability insurance As noted earlier, the new rules allow for beneficiaries on critical illness and disability insurance policies. Beneficiaries designated on or after July 1, 2012 will be accepted for all inforce policies issued in Alberta or British Columbia regardless of when the policy was issued. In addition, beneficiary designations will also be accepted with new business applications signed in Alberta or British Columbia on or after July 1,

10 Naming a beneficiary In general, the new rules for Alberta or British Columbia bring the law into line with that of Manitoba and Quebec. If the policy was issued in Alberta or British Columbia, the policy owner can name beneficiaries for all benefits payable on a critical illness or disability insurance policy using the appropriate insurer form. This form can also be used to name beneficiaries for specific benefits. If the policy wasn t issued in one of these provinces, beneficiary designations aren t allowed, but the policy holder can direct that the benefits be paid to another person during the lifetime of the policy owner. Secondary or contingent beneficiary designations The new rules for beneficiary designations and secondary/contingent owners are allowed on inforce critical illness, disability and life insurance policies, provided the requests are made on or after July 1, The policy owner may name one, or more, people as a contingent beneficiary. This person (or persons) will then take over as the primary beneficiary (or beneficiaries) if the primary beneficiary dies before the benefits or proceeds are payable. Irrevocable beneficiaries The new rules allow for beneficiaries to be named irrevocably. The rules entitle an irrevocable beneficiary to consent to a change of beneficiary at age 18 (in Alberta) or 19 (in British Columbia), rather than at age 21. In general, a policy owner won t need to name a beneficiary for critical illness and disability insurance policies, since the standard contract s terms generally address the most probable fact situations. However, in certain circumstances, naming a beneficiary may be advantageous such as when the policy owner wants greater certainty that his or her wishes will be carried out. In such a case, a beneficiary can be named irrevocable, meaning the beneficiary designation cannot be altered or revoked without the consent of the irrevocable beneficiary. In addition, certain policy changes such as the cancellation of a rider, partial or full conversion, and face amount decreases also cannot be made without the consent of the irrevocable beneficiary. Another situation in which a policy holder may want a beneficiary designated as irrevocable is upon a transfer of ownership, since such a transfer will automatically revoke any revocable beneficiary (that is, the revocable beneficiary will be removed from the policy), unless the request for transfer reads otherwise. 10

11 Naming a beneficiary for the survivorship benefit only Under the new rules, the policy owner of a disability insurance policy in Alberta and British Columbia (and also in Manitoba or Quebec) can name a beneficiary for the survivorship benefit only and not for any other benefits in the policy. The insurer company s form for beneficiary designation for critical illness and disability insurance policies will contain a name of benefit section, where the policy owner will specify survivorship. Return-of-premium benefits payable upon death Under the new rules, in Alberta and British Columbia a policy owner on a critical illness or disability insurance policy, and who is the insured person on that policy, can now elect to direct return-of-premium benefits payable upon death to someone other than the person indicated under the terms of the contract. The same situation also applies in Manitoba and Quebec. However, a policy owner in a province outside of Alberta, British Columbia, Manitoba or Quebec, who is also the insured person of a critical illness or disability insurance policy, is not able to direct return-of-premium benefits payable upon death to someone other than the person indicated under the terms of the contract. This is because the direction to pay ceases to have effect upon death and doesn t meet the requirements of estate legislation. Naming a beneficiary for return-of-premium at expiry benefit only, and not for other benefits under the policy The policy owner of a critical illness insurance policy in Alberta and British Columbia (as well as in Manitoba and Quebec) can name a beneficiary for the return-of-premium at expiry benefit only. (The return-of-premium at expiry rider returns 100% of eligible premiums paid at the expiry of the coverage if there has been no claim on a covered condition benefit by the expiry date). The insurer form for beneficiary designation for critical illness insurance policy contains a section on critical illness return of premium benefits payable while living which will have to be completed by the policy owner. Beneficiaries under group plans When an insurance company replaces another insurer s existing group life insurance policy, they will have the option to automatically carry over the beneficiary designation instead of having everyone fill out new designation forms. However, if they do automatically carry it over, they will need to advise the insured. Beneficiary designations outside Alberta, British Columbia, Manitoba and Quebec As suggested above, provinces outside of Alberta, British Columbia, Manitoba and Quebec don t have legislation on beneficiary designations pursuant to disability and 11

12 critical illness insurance policies currently in place. The advisor may draft a direction to pay statement in order to direct that benefits be paid to another person during the lifetime of the policy owner. However, a direction to pay expires on death of the policy owner, does not provide any creditor protection for benefits, and can be revoked by the policy owner at any time. 7. Secondary/contingent ownership on critical illness, disability and accident and sickness insurance policies Secondary or contingent ownership is now allowed on critical illness and disability insurance policies in Alberta and British Columbia (the terms secondary and contingent are interchangeable in Alberta and British Columbia insurance law). This means that the policy owner may name a person as secondary/contingent owner, should the primary policy owner die before benefits or proceeds are payable. Ownership of the policy is automatically transferred at death to the new owner, once appropriate proof of death is provided. Policies that don t have a contingent owner designation will be owned by the estate following the death of the policy owner. Obviously, this type of ownership only applies in situations where the policy owner and insured are different people and the provisions of the policy covers a person other than the insured. Most critical illness and disability insurance policies are owned by the insured, so secondary ownership isn t applicable. However, it can be a relevant with regard to a child critical illness insurance policy: for example, a parent who isn t the primary policy owner may be designated as the contingent owner. As well, also of July 1, 2012, contingent owners will be allowed on accident and sickness policies issued in British Columbia and Alberta. Previously, only Quebec allowed for a contingent owner to be named on an accident and sickness policy (called a subrogated owner in Quebec). NOTE: When a contingent owner is designated on a policy, the advisor should alert the client to address in his or her will these new circumstances, to avoid potential conflicts while executing it. 12

13 8. Change of residence critical illness, disability and life insurance There may be some uncertainty about how the new rules will impact policyholders who move from Alberta or British Columbia to another jurisdiction with insurance legislation dissimilar to the new rules. Policy owner moves residence Suppose the policy owner signs the application in Alberta but afterward moves to, for example, Ontario. Then Alberta law will apply, since jurisdiction is based on where the policy owner resided at the time the application was signed. A later change of residence of the policy owner will not affect the law applicable to the contract. Suppose the policy owner adds coverage to an existing inforce policy and the current province (e.g., Ontario) isn t the same as where the base application was signed (e.g., Alberta). Then the original issue location will dictate the policy s jurisdiction, regardless of whether or not the policy owner has since moved. From a legal perspective, the policy owner isn t entering into a new contract, they are adding additional coverage. 9. Insurer Forms Revisions Advisors and MGAs should know that insurer forms need to be updated to reflect the changes introduced regarding limitation periods, beneficiary designations, reinstatements, irrevocable beneficiaries, and claims during grace periods. These changes affect forms dealing with: the designation of contingent owners on critical illness and disability insurance policies issued in Alberta and British Columbia; the beneficiary designation and directions to pay for critical illness and disability insurance policies issued in Alberta and British Columbia; the transfer of ownership on critical illness and disability insurance policies issued in Alberta and British Columbia; the application for changes to disability or critical illness insurance policies issued in Alberta and British Columbia, in particular to capture the irrevocable beneficiary signature where required; and group benefits contracts issued in Alberta and British Columbia, to reflect changes to: o limitation periods for legal actions (include a limitation period provision in the employee benefits booklet), and 13

14 o right to copies of documents (revise employee benefits booklet to include a clause setting out client s right to request copies of documents from insurer that relate to the group plan). 14

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