Here’s a quick video that describes what we are talking about when we refer to Estate and Personal Planning documents:

For more information on how to get our process started; and/or for pricing information, please email: office@davidnotary.com or phone 604 685 7786.

  • Will
    • a document that leaves instructions to those who outlive us with regard to who will participate in our estate as beneficiaries; who would receive specific gifts and/or legacies; as well as naming who you would like to act as guardians for infant children.
  • Powers of Attorney
    • a Specific Power of Attorney is a document that names someone to act on your behalf for a specific financial or legal purpose or transaction.  It may be useful if you are traveling or know you will be unreachable for a specific length of time and you have a transaction or something going on, such as refinancing your mortgage; and you will be unable to sign documents for yourself.
    • an Enduring Power of Attorney is a document where you name someone on your behalf; to sign for financial and/or legal documents; such as helping with your banking or dealing with your taxes.  An Enduring Power of Attorney typically does not expire.  It may have restrictions, but it often is very general in nature allowing for flexibility and assistance with anything that may arise in terms of financial and/or legal issues.
    • See attached below – sections of Power of Attorney Act regarding specific powers and requirements.
  • Representation Agreements
  • Advance Directive
    • A document that tells health care providers what health care you want or do not want if you are unable to make those decisions yourself.  The document provides or withholds Consent for such procedures.  These instructions must be follows by health care providers without consulting your family or friends.
    • Sometimes a person can have a Section 9 Representation Agreement for health and personal care of an ongoing nature; but have an Advance Directive for end of life decision making.

Strategy –

A common strategy to be properly prepared is to have a Power of Attorney for Legal and Financial decision making; a Section 9 Enhanced Representation Agreement for your Health and Personal Care; and a Will to deal with what happens after a person has passed away.  Many people will also choose to do an Advance Directive to deal with end of life decision making; though this is much more of a personal and optional choice.

Some people will want only one of these documents; perhaps for a specific purpose.

For more information on how to get our process started; and/or for pricing information, please email: office@davidnotary.com or phone 604 685 7786.

NON-Standard Provisions

Section 9 of the Representation Agreement Act for information

(1)  In a representation agreement made under this section, an adult may, subject to subsections (2) and (3), authorize his or her representative to

a)            Do anything that the representative considers necessary in relation to the personal care or health care of the adult, or

b)            Do one or more things, including any of the following:

i.        Decide where the adult is to live and with whom, including whether the adult should live in a care facility;

ii.        Decide whether the adult should work and, if so, the type of work, the employer, and any related matters;

iii.        Decide whether the adult should participate in any educational, social, vocational or other activity;

iv.        decide whether the adult should have contact or associate with another person;

v.        decide whether the adult should apply for any licence, permit, approval or other authorization required by law for the performance of an activity;

vi.        make day-to-day decisions on behalf of the adult, including decisions about the diet or dress of the adult;

vii.        give or refuse consent to health care for the adult, including giving or refusing consent, in the circumstances specified in the agreement, to specified kinds of health care, even though the adult refuses to give consent at the time the health care is provided;

viii.        despite any objection of the adult, physically restrain, move and manage the adult and authorize another person to do these things, if necessary to provide personal care or health care to the adult.

(2) Unless expressly provided for in a representation agreement made under this section, a representative must not

a)            Give or refuse consent on the adult`s behalf to any type of health care prescribed under section 34(2)(f) of the Health Care (Consent) and Care Facility (Admission) Act,

b)            Make arrangements for the temporary care and education of the adult`s minor children, or any other persons who are cared for or supported by the adult, or

c)            Interfere with the adult`s religious practices.

(3) In a representation agreement made under this section, if a representative is provided the power to give or refuse consent to health care for the adult, the representative may give or refuse consent to health care necessary to preserve life.

Section 7 of the Representation Agreement Act

for information

 

(1)          In a representation Agreement made under this section, an Adult may authorize his or her Representative to help the Adult make decisions on behalf of the Adult, about any or all of the following:

(a)          the Adult’s personal care, .and

(b)          routine management of the Adult’s financial affairs, including, subject to the regulations,

(i)            payment of bills

(ii)          receipt and deposit of pension and other income,

(iii)         purchases of food, accommodation and other services necessary for personal care, and

(iv)         the making of investments;

(c)          major health care and minor health care, as defined in the Health Care (Consent) and Care Facility (Admission) Act, but not including the kinds of health care prescribed under section 34 (2) (f) of that Act;

(d)          obtaining legal services for the Adult and instructing counsel to commence proceedings, except divorce proceedings, or to continue, compromise, defend or settle any legal proceedings on the Adult’s behalf.

(2)          An Adult may authorize a Representative under subsection (1) (a) to accept a facility care proposal under the Health Care (Consent) and Care Facility (Admission) Act for the Adult’s admission to a care facility, but only if the facility is

(a)          a family care home,

(b)          a group home for the mentally handicapped, or

(c)          a mental health boarding home.

(2.1)      A Representative may not be authorized under this section

(a)       to help make, or to make on the Adult’s behalf, a decision to refuse health care necessary to preserve life, or

(b)       despite the objection of the Adult, to physically restrain, move or manage the Adult, or authorize another person to do these things.

 

Section 2 of the Representation Agreement Regulation, B.C. Reg. 199/2001, is repealed and the following substituted:

2.   (1)    For the purposes of section 7(1)(b) of the Act, the following activities constitute “routine management of the Adult’s financial affairs”:

(a)          Paying the adult’s bills

(b)          Receiving the adult’s pension, income and other money;

(c)          Depositing the adult’s pension, income and other money in the adult’s accounts;

(d)          Opening accounts in the adult’s name at financial institutions;

(e)          Withdrawing money from, transferring money between or closing the adult’s accounts;

(f)           Receiving and confirming statements of account, passbooks or notices from a financial institution for the purpose of reconciling the adult’s accounts;

(g)          Signing, endorsing, stopping payment on, negotiating, cashing or otherwise deal with the cheques, bank drafts and other negotiable instruments on the adult’s behalf;

(h)          Renewing or refinancing, on the adult’s behalf, with the same or another lender, a loan, including a mortgage, if

(i) the principal does not exceed the amount outstanding on the loan at the time of the renewal or refinancing, and

(ii) in the case of a mortgage, no new registration is made in the land title office respecting the renewal or refinancing;

(i)            Making payment on the adult’s behalf on a loan, including a mortgage, that

(i)    Exists at the time the representation agreement comes into effect, or

(ii)  Is a renewal or refinancing under paragraph (h) of a loan referred to in that paragraph;

(j)            Taking steps under the Land Tax Deferral Act for deferral of property taxes on the adult’s home;

(k)          Taking steps to obtain benefits or entitlements for the adult, including financial benefits or entitlements

(l)            Purchasing, renewing and cancelling household, motor vehicle or other insurance on the adult’s behalf, other than purchasing a new life insurance policy on the adult’s life;

(m)        Purchasing goods and services for the adult that are consistent with the adult’s means and lifestyle

(n)          Obtaining accommodation for the adult other than by the purchase of real property

(o)          Selling any of the adult’s personal and household effects, including a motor vehicle

(p)          Establishing an RRSP for the adult

(q)          Making contributions to the adults RRSP and RPP;

(r)           Converting the adult’s RRSP to a RRIF or annuity and creating a beneficiary designation in respect of the RRSP or annuity that is consistent with the beneficiary designation made by the adult in respect of the RRSP

(s)          Making, in the manner provided in the Trustee Act, any investments that a trustee is authorized to make under that Act;

(t)            Disposing of the adult’s investments;

(u)          Exercising any voting rights, share options or other rights or options relating to share held by the adult;

(v)          Making donations on the adult’s behalf to registered charities, but only if

(i) this is consistent with the adult’s financial means at the time of the donation and with the adult’s past practices, and

(ii) the total amount donated in any year does not exceed 3% of the adult’s taxable income for that year;

 

(w)         In relation to income tax,

(i) completing and submitting the adult’s returns,

(ii) dealing, on the adult’s behalf, with assessments, reassessments, additional assessments and all related matters, and

(iii) subject to the Income Tax Act and the Income Tax Act (Canada), signing on the adult’s behalf, all documents, including consents, concerning anything referred to in subparagraphs (i) and (ii)

(x)          Safekeeping the adult’s documents and property;

(y)          Leasing a safety deposit box for the adult, entering the adult’s safety deposit box, removing its contents and surrendering the box;

(z)          Redirecting the adult’s mail:

(aa)       Doing anything that is

 

(i)    Consequential or incidental to performing an activity described in paragraphs (a) to (aa) and

(ii)  Necessary or advisable to protect the interests and enforce the rights of the adult in relation to any matter arising out of the performance of that activity.

 

(2)  For greater certainty, the activities that under subsection (1) constitute “routine management of the adult’s financial affairs” do not include any of the following:

(a)          Using or renewing the adult’s credit card or line of credit or obtaining a credit card or line of credit for the adult;

(b)          Subject to subsection (1) (h), instituting on the adult’s behalf new loan, including a mortgage;

(c)          Purchasing or disposing of real property on the adult’s behalf;

(d)          On the adult’s behalf, guaranteeing a loan, posting security or indemnifying a third party;

(e)          Landing the adult’s personal property or, subject to subsection (1) (v), disposing of it by gift;

(f)           On the adult’s behalf, revoking or amending a beneficiary designation or, subject to subsection (1) (r), creating a new beneficiary designation

(g)          Acting, on the adult’s behalf, as director or officer of a company

 

Section 3 of the Representation Agreement Regulation, B.C. Reg. 199/2001, is repealed and the following substituted:

3. Financial Records of the representatives

(1) This section applies to a representative appointed under a representation agreement made under section 7 of the Act who has authority over an adult’s financial affairs.

(2) A representative must make a reasonable effort to determine the adult’s property and liabilities as of the date on which the representative first exercises authority on the adult’s behalf, and maintain a list of that property and those liabilities.

(3) a representative must keep the following records in relation to the period for which the representative is acting:

(a)       a current list of the adult’s property and liabilities, including an estimate of their value if it is reasonable to do so;

(b)       accounts and other records respecting the exercise of the representative’s authority under the representation agreement;

(c)        all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement, on behalf of the adult, of capital or income.

2 the following section is added:

3.1 Care records of representatives

(1) This section applies to a representative who has authority over an adult’s personal care or health care, as applicable.

(2) Subject to subsection (3), a representative must keep the following records in relation to the period for which the representative is acting:

(a)       except as set out in the representation agreement, a copy of any record made by the adult of the adult’s instructions, wishes, beliefs and values within the meaning of Section 16 of the Act;

(b)       if, since the date the representation agreement was made, the adult’s residence changes or there is a material change in the needs of the adult with respect to personal care or health care, information respecting the nature of the change and the decision made by the representative in respect of it;

(c)        if the representative made on behalf of the adult a decision respecting

(i)   major health care within the meaning of the Health Care (consent) and Care Facility (Admission) Act, or

(ii) the admission of the adult to, or the adult’s continued residence in, a care facility within the meaning of the Health Care (consent) and Care Facility (Admission) Act, a description of the decision made and the date on which it was made;

(d)       if the representative restricts a person from contacting or associating with the adult, information respecting the nature of the restriction and the decision made by the representative in respect of it;

(e)       if the adult was physically restrained, moved or managed, under authority granted under the representation agreement and section 9 (1) (b) (viii) of the Act or another enactment, a description of who physically restrained, moved or managed the adult and why.

 

 

 

Power of Attorney Act, 2011, Parts 2

(British Columbia)

Duties of attorney

19  (1) An attorney must

(a) act honestly and in good faith,

(b) exercise the care, diligence and skill of a reasonably prudent person,

(c) act within the authority given in the enduring power of attorney and under any enactment, and

(d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.

(2) When managing and making decisions about the adult’s financial affairs, an attorney must act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.

(3) An attorney must do all of the following:

(a) to the extent reasonable, give priority when managing the adult’s financial affairs to meeting the personal care and health care needs of the adult;

(b) unless the enduring power of attorney states otherwise, invest the adult’s property only in accordance with the Trustee Act;

(c) to the extent reasonable, foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult;

(d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult’s will, except if the disposition is necessary to comply with the attorney’s duties;

(e) to the extent reasonable, keep the adult’s personal effects at the disposal of the adult.

(4) An attorney must keep the adult’s property separate from his or her own property.

(5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that

(a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or

(b) has been substituted for, or derived from, property described in paragraph (a).

Attorney’s powers

20  (1) An attorney may make a gift or loan, or charitable gift, from the adult’s property if the enduring power of attorney permits the attorney to do so or if

(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependants, and to satisfy the adult’s other legal obligations, if any,

(b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and

(c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value.

(2) An attorney may receive a gift or loan under subsection (1) if the enduring power of attorney permits.

(3) Permissions under subsections (1) and (2)

(a) must be express, and

(b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally.

(4) An attorney may retain the services of a qualified person to assist the attorney in doing anything the adult has authorized the attorney to do.

Attorney must not make a will for adult

21  An attorney must not make or change a will for the adult for whom the attorney is acting, and any will or change that is made for an adult by his or her attorney has no force or effect.

When authority of attorney is suspended or ends

29  (1) The authority of an attorney is suspended in any circumstances set out in an enduring power of attorney, for as long as those circumstances continue.

(2) The authority of an attorney ends

(a) if the enduring power of attorney is terminated,

(b) if the provisions of the enduring power of attorney that give authority to the attorney are revoked,

(c) if the attorney resigns in accordance with section 25, or

(d) if the attorney

(i) is the adult’s spouse and their marriage or marriage-like relationship ends,

(ii) becomes incapable or dies,

(iii) is bankrupt,

(iv) is a corporation and the corporation dissolves, winds up or ceases to carry on business, or

(v) is convicted of a prescribed offence or an offence in which the adult was the victim.

(3) Subsection (2) (d) (i) does not apply if the enduring power of attorney states that the authority of the attorney continues regardless of whether the marriage or marriage-like relationship ends.

(4) A marriage ends for the purposes of this section when an agreement, judgment or order referred to in section 56 of the Family Relations Act is first made in respect of the marriage.

(5) A marriage-like relationship ends for the purposes of this section when the parties to the marriage-like relationship stop cohabiting with each other, with the intention of ending the relationship.

(6) If the authority of an attorney ends under subsection (2), any remaining attorneys may continue to act unless the enduring power of attorney states otherwise.

(7) Anything lawfully done by an attorney on behalf of the adult, including making an agreement, remains binding on the adult after the authority of the attorney ends.

When enduring power of attorney is suspended or terminates

30  (1) If an adult becomes incapable after making an enduring power of attorney, any authority given to an attorney under the enduring power of attorney continues.

(2) An adult may set out in an enduring power of attorney any circumstances in which the enduring power of attorney is suspended, and, if those circumstances exist, the enduring power of attorney is suspended for as long as those circumstances continue.

(3) An enduring power of attorney is suspended in accordance with the Adult Guardianship Act if the adult has a statutory property guardian under that Act.

(4) An enduring power of attorney terminates

(a) according to the terms of the enduring power of attorney,

(b) if the adult who made the enduring power of attorney dies,

(c) if the court terminates the enduring power of attorney under section 36 (5),

(d) if the enduring power of attorney is terminated under section 12 or 33 (5) of the Adult Guardianship Act, or

(e) if the enduring power of attorney is revoked.