Personal Planning

PERSONAL PLANNING

Personal Planning is carefully crafted directives so that when the time comes that you, the adult, cannot express your wishes somebody can step forward to act on your behalf to express your wishes.

Effective September 1, 2011 several changes in legislation have come into being:

Enduring Powers of Attorney

The Power of Attorney Act has changed.  We no longer draft the old long form powers of attorney form that was thick in archaic language.  The new enduring Power of Attorney (EPA) looks quite different from the old document  and can be crafted to suit the adult’s personal needs.  Remember that Enduring Powers of Attorney are for financial and legal matters only.  You may make a ‘general’ enduring power of attorney to cover all of your financial and legal matters, or you may make a specific enduring power of attorney to cover specific matters.

Questions:

What is an Enduring Power of Attorney (EPA)?

The Enduring Power of Attorney is a legal document made under the Power of Attorney Act.  The Adult appoints one or more persons to act for the Adult to handle the Adult’s financial and legal affairs during mental incapacity and can be used while the Adult is capable.  It is critical that the Adult fully understands what powers he/she is granting with the Enduring Power of Attorney and have complete trust in the person he/she is appointing.

What if I want to sell my house and I’ll be away on holidays?

You may make a limited Power of Attorney, which is specific to the sale of your home only.  The appointed attorney does not have the ability to access your bank account if you limited the power to the sale only.

I have already made a Power of Attorney at my bank.

The banks and credit unions have their own power of attorney forms to appoint an attorney who may deal with your banking at that specific banking institution while the adult is alive and mentally capable.  This power of attorney is only for banking and cannot be used for other matters such as transferring your real property, doing your income tax return, or discussing your investment portfolio with your financial advisor to name a few.  Bank and Credit Union powers of attorney are only good while you are mentally capable.  These forms are not enduring powers of attorney either.

Who can make an Enduring Power of Attorney?

The Adult must be a person who is of the full age of 19 who understands the nature and consequence of the following matters:

a.         The property that the Adult owns and the estimated value of the property.

b.         The obligations that the Adult owes to his/her  dependents

c.         That the Attorney will be able to do on the Adult’s behalf anything that you can do                      if capable, except make a Will, subject to any conditions or restrictions set forth

in the EPA.

d.         If your attorney fails to manage your property prudently you may suffer a loss.

e.         The attorney may abuse their authority, and

f.          You, the Adult, may revoke the EPA.

Representation Agreements

A Representation Agreement is a document that will appoint a person or several persons who can make decisions on your behalf should you be unable to express or communicate your own wishes.

Representation Agreements were prepared prior to September 1, 2011 but required a certificate of advice by a lawyer.  This certificate is not required now.

When making a Representation Agreement remember to appoint a person or persons who understand your beliefs and wishes because when the moment comes that decisions have to be made your personal representative must make the right choices for you.

Depending on how the Representation Agreement has been prepared a designated representative can be granted authority to include:

  • Decisions regarding healthcare and personal care
  • Refusal or consent to life support treatment and care
  • Consent to specific or less common medical procedures and treatments
  • Consent to treatment that the Adult had approved while capable but since losing capacity has refused to give consent.
  • Deciding upon living arrangements for the Adult including choosing a care facility.

 

Who should have a Representation Agreement?

Any adult who wants to ensure that a specific person or persons are appointed to make decisions for them, especially if they have no spouse; or no spouse and no children, or if their children are in conflict with one another or would not be good decision-makers.

Advance Directives

Advance Directives set out instructions to doctors, nurses and other health care providers for your future health care.  This ensures your wishes will be carried out by heath care providers if you are unable to express them in the future.

Who should have an Advance Directive?

People who want to ensure that their wishes are followed, even if:

  • Their family’s wishes differ from their own.
  • They have no family who could be appointed as their representative.
  • They have concerns that differing opinions among their family members might cause conflict if a decision has to be made about where you should live or decisions for your end of life.

Wills

Wills are a critical tool for outlining ones wishes for the distribution of assets, guardianship of minor children, and the designation of an Executor who takes care of administering the estate.  Without a Will the Court will determine who will be the Executor and the law will decide who is entitled to the estate.

Who should have a Will?

Any adult in BC should have a Will who owns property including real estate, bank accounts, motor vehicles and other assets, or has a dependent spouse or children and wishes to have someone they know and trust take care of their estate after their death.

Deed of Gift

A Deed of Gift documents a significant gift to another person during one’s lifetime.  When prepared by a Notary it proves the donor’s intention for the gift which can be required to counter undue influence or arguments after the donor’s death.  This can also be useful in circumstances where a person near death wants to transfer their assets or home into joint tenancy or wants to give a significant sum of money or gift to another person during the donor’s lifetime.

Who should consider a Deed of Gift?

Anyone who wants to transfer an asset as a gift before the donor’s death should have a Deed of Gift prepared at the same time as the transfer.