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Frequently asked questions

Power of Attorney

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Can my Notary prepare my Enduring Power of Attorney ("EPOA")?

Yes.

What is the difference between a Will and a Power of Attorney?

A Power of Attorney allows your representative to look after your legal and financial affairs only while you are alive.
A Will gives your representative the authority to follow your instructions when you die, who will receive your estate and also allows you to designate the Guardian for any minor children.

What is a Power of Attorney?

It is a document that allows whomever you appoint (your “attorney”) to look after your legal and financial affairs.
The attorney cannot make health care or personal care decisions for you. There is a common misconception in British Columbia that an EPOA allows one to make health or personal care decisions for you such as putting you in a home. A Representation Agreement is the
document necessary in British Columbia to make health care and personal care decisions on your behalf.

What does the Power of Attorney at my bank do?

The authority for your attorney can cover financial affairs only for that particular institution.
This may be convenient for banking matters, but is not sufficient for other kinds of matters. For example, it cannot be used for real estate matters in British Columbia or other matters outside of the bank or credit union.

What is a specific Power of Attorney?

It is a document that allows someone to look after a specific matter for you such as a particular real estate transaction. It can also be for a specific time period.

What is an Enduring Power of Attorney ("EPOA")?

That is a Power of Attorney (most popular) that allows your representative to look after your legal and financial affairs while you are alive. It continues to be valid even if you suffered a disability that would you make you incapable of looking after your legal and financial affairs.
This is why many people ask us to prepare EPOA documents for them. It is the document of choice for legal and financial authority when people are making personal planning documents.

Why should I have an Enduring Power of Attorney?

If you suffer a disability that makes you unable to look after your legal and financial affairs in British Columbia, there are two solutions:

1) An application is made to the Supreme Court of British Columbia for Committee (pronounced “komitay”). This costs thousands of dollars and can take months if not longer.
Once someone is given this authority to look after your affairs, they have to report to the British Columbia Public Guardian and Trustee on a regular basis; or

2) prior to the disability, an adult had made an EPOA that would allow that person you appointed to look after your legal and financial affairs.
This is the simplest, least expensive option.

Even if you own real estate with a spouse or partner, unlike a joint bank account, that person cannot do anything with your interest in the real estate without Committee or
the simpler, less expensive solution, an EPOA.

Why should I get an enduring Power of Attorney?

To give you and your family the peace of mind knowing that if your suffer a disability, the appointed person can look after your legal and financial affairs in British Columbia.

When should I make an Enduring Power of Attorney ("EPOA")?

The best time to make an EPOA is before a crisis occurs. When you turn 19 years old, the age of majority in B.C., parental rights end and no one, not even your spouse, has legal authority to manage your affairs if you cannot do so. This may present a problem if you need help due to an illness or injury.

Who should I give Power of Attorney to?

Someone that you trust, is able to do the job and is available to help you when the time is necessary.

Can I make an Enduring Power of Attorney ("EPOA")?

Yes, provided you are over the age of 19, may make an EPOA unless you are incapable of understanding the nature and consequences of the proposed EPOA.

You are considered incapable of understanding the nature and consequences of the proposed EPOA if you cannot understand all of the following:

  • the property you have and its approximate value;
  • the obligations you owe to your dependants;
  • that your attorney will be able to do on your behalf anything in respect of your financial affairs that you could do if capable, except make a Will, subject to the conditions and restrictions set out in the EPOA;
  • that, unless the attorney manages your business and property prudently, their value may decline;
  • that the attorney might misuse the attorney’s authority; and
  • that you may, if capable, revoke the enduring power of attorney.

Who cannot be my attorney?

Someone who is under the age of 19 and someone who provides personal care or health care services to you for compensation, or who is an employee of a facility where you live and through which you receive personal care or health care services.

What can't my attorney do for me?

Anything that is prohibited by law such as making a Will for you.

The attorney cannot make health care or personal care decisions for you. There is a common misconception in British Columbia that an EPOA allows one to make health or personal care decisions for you such as putting you in a home. A Representation Agreement is the document necessary in British Columbia to make health care and personal care decisions on your behalf.

Does my attorney get paid?

Only if you state that in the EPOA document.

Does my appointed attorney have to act?

No, they do not and can also resign at any time after following certain rules.

Does my EPOA need to be witnessed by a Notary Public or a lawyer?

Yes, if you own any real estate in British Columbia

Can I cancel my EPOA?

Yes, you can by providing written notice to the attorney, provided you are capable of understanding the nature and consequences of doing so.

How do the rights of my attorney end?

if you die,
if you revoke it,
if your attorney resigns, or
if the attorney
– is your spouse and your marriage or marriage-like relationship ends,
– becomes incapable or dies,
– is bankrupt,
– is a corporation and the corporation dissolves, winds up or ceases to carry on business, or
– is convicted of a prescribed offence or an offence in which you are the victim.

Representation Agreements

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Can my Notary prepare my Representation Agreements?

Yes.

What is a Representation Agreement?

A personal planning document that allows you to appoint someone to assist you or to act for you in health care and personal care matters.
It can, in some cases, also cover routine financial affairs.

What is the difference between a Representation Agreement and an Enduring Power of Attorney ("EPOA")?

A Representation Agreement allows you to choose who can look after or help you make medical and personal care decisions.
An EPOA allows you to choose who can make legal and financial decisions only for you. An EPOA is the only document that can appoint someone else to deal with your real estate in British Columbia.

Is there more than one type of a Representation Agreement?
Yes, there are two types:
1) a standard Representation Agreement (also called a Section 7 Representation Agreement)
2) an non standard Representation Agreement (also called a Section 9 Representation Agreement)

What is the difference between a Section 7 Representation Agreement and a Section 9 Representation Agreement?

A Section 7 has standard powers as outlined in Section 7 of the Act and consist of minor and major health care, personal care, legal affairs and routine management of financial affairs.

A Section 9 (most popular) has the broadest health and personal care powers as listed in Section 9 of the Act.

This document is used by adults who want to plan for the future to cover all health and personal care matters possible. It can also cover arrangements for the
care of minor children.

What is a Section 7 Representation Agreement?

A Representation Agreement with Section 7 standard powers is a legal document for personal planning that is available to adults who need help today because their mental capability/competency may be in question.

This type of Agreement is also a document of choice for other situations. For example, adults who:

  1. need immediate help with their financial affairs and/or health matters due to physical incapability
  2. want to use a Representation Agreement to cover financial and legal affairs instead of an Enduring Power of Attorney to plan for their future.

What areas of authority can be included under a Section 7 standard Representation Agreement?

1) Minor and major health care,
2) Personal care,
3) Legal affairs,
4) Routine management of financial affairs.

What is major health care?

Major surgery, any treatment involving a general anaesthetic, major diagnostic or investigative procedure, or any health care designated by regulation as major health care.

What is minor health care?

Any health care that is not major health care.

What is personal care?

Care involving:
Your living arrangements, including whether you should live in a care facility,
Your daily activities,
Applications for any licence, permit, approval or other authorization required by law,
Your dress and diet.

What is a monitor?

In this case, it is not related to the computer family!
Is a third party that ensures that the Representation Agreement is being followed. The monitor does not make any decisions.

What is not covered by a Representation Agreement?

When people are planning for the future, it is common that they will make an Enduring Power of Attorney to cover financial and legal affairs and a Representation Agreement to cover health and personal care matters. Making an Enduring Power of Attorney is important if you own real estate property, as the authority for routine financial affairs under the Section 7 Representation Agreement does not include dealing with real estate.

When should I make a Representation Agreement?

The best time to make an Agreement is before a crisis occurs. When you turn 19 years old, the age of majority in B.C., parental rights end and no one, not even your spouse, has legal authority to manage your affairs if you cannot do so. This may present a problem if you need help due to an illness or injury.

Wills

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Can my Notary prepare my Will for me?

Yes, in most cases.

What is a Will?

A document that gives your representative the authority to follow your instructions when you die, who receives your estate and also allows you to designate the Guardian for any minor children.

What is the difference between a Will and an EPOA?

A Will gives your representative the authority to follow your instructions when you die and also allows you to designate the Guardian for any minor children.
An EPOA allows your representative to look after your legal and financial affairs only while you are alive.

What is my Estate?

Anything that you own that is not held in joint tenancy ownership with another person is considered to be part of your estate. Contracts with a designated beneficiary such as a life insurance policy are not considered to be a part of your estate.

What makes a Will valid?

It must be in writing
It must be signed by the Willmaker
It must be signed in the presence of at least two witnesses.

Can I make my Will with my video camera?

No.

Why should I have a Will?

If you do not have a legal Will, your heirs may have to go to the Public Guardian and Trustee for assistance. That service is not free and the cost to the heirs may be significant.

In your Will, you can decide:
Who will be your representative,
Who will receive your Estate, and
Who will be the Guardian of your minor children.

What is an Executor?

The person responsible for all aspects of settling your estate.
The process of finalizing an estate can take up to a year, and sometimes longer. Your executor must be available to take on this job and work through all aspects at a time when emotions can run high. It is important to consider all of these factors when choosing your Executor. If you are having difficulty choosing an Executor, your Notary can help you assess the options available. More.

What does an Executor have to do?

Here is a list of some of the duties expected of
your executor:
Contacting all beneficiaries and next of kin (even if your next of kin are not part of your estate plan)
Making arrangements for disposition of your remains (cremation or burial)
Making arrangements for funeral, family gathering,or disposal of ashes (as you have planned)
Finding a new home for your pet(s)
Contacting financial institutions and all service providers
Cancelling subscriptions, utilities, pensions, and re-directing mail
Removing possessions from your home and preparing it for sale if applicable
Liquidating your assets
Paying all final bills
Filing tax returns and obtaining a final clearance certificate from Canada Revenue Agency
Distributing the estate

Can my Executor refuse to act?

Yes, as long as they have not inter-meddled in the estate.
Always a good idea to:
1) ask the person if they agree to be your Executor; and,
2) have an alternate Executor in case the first Executor cannot act for any reason.

Does my Executor get paid as soon as I sign my Will?

No, they are only paid after they have done the work of an Executor after you pass away and subject to the approval of the beneficiaries.

Can my Executor charge a fee for acting as an Executor?

Yes, up to 5% of the value of the estate, subject to the approval of the beneficiaries.

What is Probate?

Probate is a legal process through the Court to verify that a Will is valid.

Who should I choose as my Executor?

Choosing an Executor is a critical part of preparing your Will. Not only is your executor responsible for all aspects of settling your estate a process which can take up to a year or longer to resolve but they can also be held personally liable for any errors that they make during the settling process.
You’ll want to choose someone who, at a time when emotions are running high, will be capable of:

  • Taking on the many tasks
  • Remaining impartial from beneficiaries
  • Dealing with time constraints
  • Maintaining a good business sense

One stress-free option is to have Martin Kastelein Notary Public as your Estate Executor.
Martin is not only trained in estate administration, but he also:

  • Specializes in detail-oriented work
  • Works in a timely manner
  • Takes responsibility
  • Carries Errors and Omissions Insurance, protecting your estate.

What happens if I leave a child out of my Will or give unequal amounts to my children?

In British Columbia, a child or spouse of a deceased person has the right to apply to Court to have the Will varied.

What does intestate mean?

Dying without leaving a valid Will.

Does the government keep my estate if I die without a Will?

Yes, that can happen if you have no surviving relatives, but it is rare.

Who gets my estate if I die without a Will?

In British Columbia there are laws setting out who shares in your estate.
If you are married, your spouse and children will share in the estate.
If you have no spouse, your estate will go equally to your children.
If you have no spouse nor children, your estate will be shared equally between your parents.
If you have no spouse, children or parents, your siblings will share your estate equally.
If you have no spouse, children, parents, siblings, your nieces and nephews will share your estate equally.

Real Estate

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What is Joint Tenancy?

It has nothing to do with a rental.
It is a form of property ownership that means upon your death, your ownership in that asset will go automatically (generally by producing a death certificate) to the surviving owner(s).

I own real estate in British Columbia with my spouse, is that considered Joint Tenants?

No, the property title must show the words “Joint Tenants” after your names.

What is Tenants In Common?

It is a form of property ownership that results in your share of the property going to your Estate and subject to the terms of your Will. You can have unequal shares of ownership with Tenants in Common ownership.

How can I tell my property ownership is held as Tenants in Common?

If the property title does not show the words “Joint Tenants” after the owners’ names.

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