You can learn more about Planning Documents by visiting our FAQ’s below. Then, to assist in preparing for your appointment, consider our Simple Will and/or Power of Attorney Starters. If you have a general question that has not been addressed here, we encourage you to contact us. Should you require a more immediate or specific response, however, please give us a call to discuss your circumstances.
- Simple Wills
- Powers of Attorney
- Health/Personal Care
- BC Simple Will Starter
- BC Power of Attorney Starter
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Simple Wills FAQ’s
A Will is a legally enforceable document that allows each person the opportunity to express individual preferences, voluntary appointments, and considered bequests to take effect upon death. In the absence of a Will, an Administrator would be established by way of court order then the fate of assets determined by the Wills, Estates and Succession Act (WESA). The interests of most people are well served by what is called a “Simple” Will meaning immediate distribution of assets upon death and that no trusts are created to last beyond the age of majority, 19 years in BC. As a notary, this is the type of Will we prepare and, after visiting the FAQ’s below for more information, you may be interested in completing our BC Simple Will Starter.
What would happen if I died without a Will?
Answer:
When a person dies without a Will, he/she is said to have died intestate. WESA sets out the protocol for the administration and division of assets under an intestacy. More information is available in this pamphlet from the Nidus Society and these videos and pamphlet from The People’s Law School.
What is a Wills Notice? Is there a filing fee? Do I need one?
Answer:
The filing of a Wills Notice is optional, does not enhance the validity of the Will, and a copy of the Will does not accompany it. The notice identifies the person who has made the will, the date of the will, and where the will is located. There is a filing fee each time the information in the notice is updated, but there is particular value for those who have no one in whom to confide, or who choose not to confide in anyone, the existence and location of a Last Will.
How can I help my Executor?
Answer:
Your Will speaks to the appointment of “who”, naming Executors, Beneficiaries, and, if applicable, Guardians for minor children and to the distribution of “what”, allocating among beneficiaries whatever assets fall into the Estate at time of death. The Will does not, however, generally go into detail as to “how” the Executor fulfils your direction. At a time when you are no longer available to answer questions about your Estate or intentions, your Executor will be expected to make arrangements for your eternal rest, take inventory of and distribute your assets, settle your obligations, make various decisions on your Estate’s behalf, file a final tax return, account to beneficiaries, and respond to a myriad of other demands (often while under emotional stress) before being released from their responsibilities. They do not, however, have to go it alone and you can help make their task go more smoothly with a little advance planning.
If you have specific preferences for your corporeal remains, these wishes should be made known to your family and Executor. In making your decisions, you may wish to consult in advance with clergy, the Memorial Society of BC, and/or Funeral Planner(s). If you are considering being an organ donor, you will also need to register with the BC Transplant Society.
Another significant step you can take to assist your Executor is to leave a “treasure map”, a guide to locating your assets, passwords, contacts, etc. Some funeral services and financial consultants can provide you with planning literature. For your convenience, here is a PDF version (tip: to be able to retain your information, download the form to your computer before completing the fields) of an Executor Reference Guide generously provided as a sample by Raymond James Financial Planning Ltd. You may also wish to leave written or recorded memoranda to family members in hopes of easing their grief and clarifying your reasoning/preferences for the allocation of any assets that may be in contention.
Appointing someone as Executor is a statement of your esteem and trust in that person so is considered an honour, but it is also a huge responsibility and a lot of work. Accordingly, whatever you can do to provided assistance in advance will reflect favourably upon you in their memories.
What other help is there for my Executor?
Answer:
In addition to your preparations and the support of family members, your Executor will have access to reference materials such as The Self-Counsel Press BC Probate Guide and People’s Law School publications, to various professionals who can assist with specific tasks, and to a number of services available to provide general or comprehensive support as the Executor may require. Most banks/trust companies have an Estates division and there are also independent service providers such as Executor Support. Another important consideration is Executor liability for which there are insurance products such as those through Errasure.
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Power of Attorney FAQ’s
Be it accident, illness or advanced age, the same unfortunate circumstances that may cause a person’s death may not do so instantly but instead induce a state of reduced capability. In other words, there may be a time during one’s lifetime when, for these reasons or merely as a convenience, someone trustworthy is needed to act in our stead. Power of Attorney allows for the voluntary appointment of such a person for legal and financial matters (but not medical consents). An enduring Power of Attorney additionally specifies the donor’s intention that powers granted are to “endure” despite subsequent mental infirmity on the part of the donor. After visiting the FAQ’s below for more information, you may be interested in our BC Power of Attorney Starter.
What is a Power of Attorney (PA)?
Answer:
A PA is a legal document evidencing the authority granted by one person (the Donor) to another (the Attorney) to act on his/her behalf in business or financial matters. Being such a simple and inexpensive planning tool, it is often likened to insurance – while you hope never to need it, its value is beyond measure if ever you do, and once you do, you probably can’t then get it.
What is an Enduring Power of Attorney (EPA)?
Answer:
An EPA provides that the powers granted shall continue to be in effect despite any possible subsequent mental infirmity on the part of the Donor. Without the “enduring clause”, an ordinary PA ceases to be effective at the same time as the Donor loses his/her capacity to transact on their own behalf. The Power of Attorney Act was significantly amended September 1, 2011, particularly with respect to EPA’s. Existing EPA’s valid before that date are grandfathered but cannot be replaced as the same simple document that was once the prescribed form.
Who can make a Power of Attorney?
Answer:
Any capable adult can make a PA. If a person has a mild intellectual disability or is in the very early stages of dementia, they may still be able to do so but this will depend on their understanding of the document’s nature and effect. If there is doubt concerning capacity, however, an assessment by an appropriate person such as a medical practitioner or psychologist would be required.
When I appoint an attorney, does that mean it has to be a legal professional?
Answer:
No. An attorney in this sense does not mean a lawyer or solicitor. Usually you would appoint a family member or close friend. The most important criteria for your selection is that the person be trustworthy, responsible, willing and up to the task. If you do not know any such person, you may wish to visit the Public Guardian and Trustee (PGT) website to learn more about their possible role in this regard.
Can't my spouse just sign anything for me without a Power of Attorney?
Answer:
No. No one can legally sign on your behalf in the absence of prearrangement or evidence of your authority to do so. Of course it’s OK if the two of you already share “either/or” signing authority on a joint bank account, for example, but for transactions involving assets in your name only or where all co-owners must sign (such as with real estate) – only your signature or that of your legally authorized (by way of PA) signatory will do.
Why would I want to give Power of Attorney?
Answer:
You may want to appoint an attorney in situations where
- – you are going to be away/out of communication/in hospital
- – you want someone to handle a particular matter for you
- – you are physically unable to continue to look after your own affairs
- – you want to prepare for the possibility of unexpected mental incapacity After all, the major causes of death – accident, illness and age – do not always take their toll immediately but can instead result in diminished capacity over an extended period of time. Once you need a PA, it may be too late to make one.
What happens if I become mentally incompetent as a result of accident, illness or age, and I haven't yet given Power of Attorney?
Answer:
A number of options exist to assist those who are no longer able to manage on their own and who have not made suitable prior arrangements. Most of them involve the PGT and/or the courts. On this and related topics, the PGT website describes how they can be of assistance.
Are my own rights diminished by giving Power of Attorney?
Answer:
No. They are not affected in any way by executing a PA but now there is an additional person besides yourself who can sign on your behalf.
When I make a Power of Attorney, how should my name appear as Donor if, for example, I go by my middle name?
Answer:
Ideally, you would use and keep up to date your full current legal name for all major transactions and therefore maintain consistency of identity. However, this may not always be the case so one must try to anticipate the possible applications of the PA. For use in a real estate transaction, for example, your name must appear exactly as it does on the title to the subject property and if you own multiple properties using more than one version of your name, you may have to execute more than one PA. This is generally true for other types of business transactions as well though enforcement may be less stringently applied.
What are the responsibilities of my attorney?
Answer:
The duties and obligations of your Attorney are described in the Power of Attorney Act and include acting honestly, in good faith, and at all times in your best interests taking into account your current wishes, known beliefs and values, and any directions that are set out in the document while avoiding any conflict with those interests. The Attorney should keep your assets separate from their own and maintain proper records of their dealings with your assets. The cannot dispose of any property known as being specifically gifted in your Will. They otherwise can convert the form of your assets but cannot, unless explicitly provided for in the document, use the PA to convert ownership of your assets to themselves. The Nidus Personal Planning Resource Centre and Registry offers a helpful summary of the Role of an Attorney. Misuse of a PA is a crime and should be reported to the police and/or PGT for investigation.
Can I appoint more than one attorney?
Answer:
Yes. There is no legal limit to the number of attorneys you may appoint but in practical terms remember the old adage about “Too many cooks…” In the case of an Enduring Power of Attorney, you may also wish to consider Alternate Attorney(s). Further, with multiple attorneys of equal authority, you will have to decide whether they “may act separately” or “must act together”.
Why might I consider appointing more than one attorney?
Answer:
Particularly for an enduring PA to provide for possible future mental infirmity, you may want to consider appointing more than one attorney. Typically, for example, spouses will appoint each other, but what if you’re in the same auto accident? What if one who has been caring for the other suddenly dies? If you are fortunate enough to have more than one trustworthy and capable adult to choose from who will not work against each other, it may be of value in the long run and does not affect the cost of preparation.
What powers can I give my attorney? What is the difference between general and specific authority?
Answer:
The default extent of the authority available to be granted is described in the PA document as “anything that can lawfully be done by Power of Attorney” with reference to the Power of Attorney Act. For the most part, that encompasses most business and financial matters taking place in BC but would not include, for example, sign by PA a Last Will and Testament. These general powers can be restricted to specific functions or conditions, or expanded to include special authority. Be alert, however, to a PA not being readily accepted for other reasons. Sometimes the other party to a transaction may insist upon dealing directly with the Donor. Some mortgage lenders, for example, may not be comfortable with execution of their documentation by PA.
Can I restrict the powers granted to my attorney?
Answer:
Yes. While a PA starts out general in nature, it can be made specific by either limiting the powers to certain functions or by excluding certain functions from the otherwise general powers granted. Care in wording should be exercised so as not to trigger an unanticipated evidentiary requirement of the attorney (ie that they would have to prove something beyond their own identity before acceptance of the PA).
When does a Power of Attorney become effective and cease to be effective?
Answer:
Unless otherwise provided for in the document (such as being triggered by mental infirmity), a PA generally comes into effect upon its being fully executed and ceases to be effective upon the Donor’s death, bankruptcy or revocation of the PA. It is therefore important to manage the document in terms of its possession. You have the option of giving the PA to your attorney at any time or instead leaving it with a trusted individual for safe-keeping until the time is right for the attorney to use it. Because a PA cannot overlap into estate matters, the attorney must upon the death of the Donor relinquish authority in favour of the executor appointed in the Donor’s (now Testator’s) Will.
Does a general Power of Attorney have to be in any particular form for use in BC?
Answer:
The Power of Attorney Act and Land Title practice prescribes certain required content and manner of execution but no longer a specific form of document. Financial Institutions may have their own forms of PA to be used internally regarding their client’s accounts but they are not for general or widespread use.
Does my Power of Attorney need to be registered?
Answer:
Unlike for Wills, there is no government registry specifically established to record the existence of a power of attorney. The Nidus Registry fills that role but registration is optional. A PA can also be registered at the Land Title Office and, in fact, must be so registered if it is to be used in a real property transaction.
Can my attorney make binding decisions regarding my personal or medical care?
Answer:
No. The authority granted in a PA is more in the area of business and financial matters. It does not include the power to make personal, medical or life decisions on your behalf. Representation Agreements and Advance Directives, however, can contain such provisions.
Where can I learn more about Powers of Attorney?
Answer:
The People’s Law School has helpful information summarized in a pamphlet as does the Nidus Personal Planning Resource Centre and Registry in their fact sheet.
How do I go about making a Power of Attorney?
Answer:
Once you have decided upon the attorney(s) to be appointed and the powers to be granted by your PA, there remain two practical considerations in making a Power of Attorney:
- The first is the accurate preparation of the document to ensure that your objectives are accomplished.
- The second is that it be properly witnessed. To be fully effective, a PA made pursuant to BC’s Power of Attorney Act will require “Officer Certification” meaning execution of the document in the presence of a witness who is authorized under the Evidence Act to take affidavits for use in BC, such as a Notary Public. We can help with both and get you started right now. Just follow the simple instructions in our BC Power of Attorney Starter and we’ll take care of the rest.
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Health/Personal Care FAQ’s
B.C.’s Health Care (Consent) and Care Facility (Admission) Act and Representation Agreement Act articulate legally enforceable requirements and preferences regarding personal and health care. While the drafting of such documents is not currently within the scope of practice at Marpole Notary, we trust this information will be of assistance enabling individuals to learn about personal care planning and make the arrangements best suited to their needs.
Who can make healthcare decisions for me if I am unable?
Answer:
The hierarchy of decision makers established by the Health Care (Consent) and Care Facility (Admission) Act is well explained on the Seniors First BC website.
What is a Living Will?
Answer:
The term “living will” does not appear in British Columbia legislation. “Living will” is a term that originated in the United States and has become a way to express in writing one’s preferences for health care treatments, most often in an end-of-life situation. Not a legally enforceable document in itself, it can be an effective way to influence the choices made by your loved ones or appointed representatives faced with end-of-life decisions. The binding legal document recognized in BC to appoint a specific representative to give health care consents and specify certain care preferences is a Representation Agreement. The binding legal document recognized in BC to ensure certain care preferences be observed without the involvement of another person’s consent is an Advance Directive.
Where can I learn more about advance planning generally?
Answer:
The B.C. government’s advance care planning guide, My Voice: Expressing My Wishes for Future Health Care Treatment offers a helpful overview of planning options and examples, as does the Planning for your Future publication from the People’s Law School.
Where can I learn more about Representation Agreements?
Answer:
There are two types of “Rep Agreement” often referenced by their relevant section in the Representation Agreement Act, being Section 7 (Standard) and 9 (Enhanced). The Peoples Law School provides a clear infographic and info page summarizing the differences. The Nidus Personal Planning Resource Centre and Registry also offers various Rep Agreement resources and maintains a helpful FAQ page.
Can I make my own Representation Agreement?
Answer:
To support individuals in making their own Rep Agreements, the BC government has a very basic template for each of Section 7 and Section 9 Agreements, the Peoples Law School provides a very good overview with links for each of Section 7 and Section 9 Agreements, and the Nidus Personal Planning Resource Centre and Registry offers how-to information and fillable forms for each of Section 7 and Section 9 Agreements.
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BC Simple Will Starter
Before completing the form below, we recommend that you visit our FAQ’s under the tab to the far left for a little background information about BC Wills. For example, it is important to remember that a “simple” Will requires immediate distribution of assets upon death and no trust created that would extend beyond the age of majority (19 in BC) of the beneficiary. Accordingly, a simple Will is not suitable for all people or families. Also, if interested in the cost of our planning document preparation services, our Service Quotations page. Once you are ready, the purpose of this form is to help organize your thoughts and collect preliminary details required in the Wills drafting process in anticipation of your appointment. To finalize your Will, we will be in contact with you personally to arrange your appointment, confirm your instructions, and attend to document execution.
P.S. Please note that we offer Will/PA packages, saving you both time and money having your planning documents taken care of at the same time. If you are interested in such a package, we recommend completing this BC Simple Will Starter first and then the balance of information for the Power of Attorney can, as necessary, be added using the our BC Power of Attorney Starter (the tab just to the right of this one.)
Click here to be taken to the BC Simple Will Starter Form
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BC Power of Attorney Starter
Before completing the form below, we recommend that you visit our FAQ’s under the tab second from the left for a little background information about Powers of Attorney for use in BC and, if interested in the cost of our planning document preparation services, our Service Quotations page. Once you are ready, the purpose of this form is to help organize your thoughts and collect preliminary details required in the Power of Attorney drafting process in anticipation of your appointment. To finalize your PA, we will be in contact with you personally to arrange your appointment, confirm your instructions, and attend to document execution.
P.S. We can save you some time (and money) if you are planning to take advantage of one of our Will/PA packages. If you will also be completing our BC Simple Will Starter (the tab just to the left of this one), we recommend doing so first, then we will need less information from you for the Power of Attorney.
Click here to be taken to the BC Power of Attorney Starter Form