Personal & Estate Planning FAQs

Why do I need a will?

Having a will gives you control over where your assets will go after you pass away. If you have young children, a will lets you appoint a guardian for them. Without a will, the court has authority to appoint a guardian and your assets will be distributed as per the intestate estate provisions according to the law. These conditions may not match your wishes and can elevate the complications and costs of settling your estate.

What is an executor and who do I choose?

The executor is the person who will handle the distribution of your estate. Upon your death, your estate will be delivered to your named executor to be held in trust. In simple terms, your executor will pay off your debts and deliver what remains to the beneficiaries as named in your will. You should appoint someone whom you trust to capably and responsibly act as your executor. An executor does not have to be your spouse or related individual.

Why do I need to appoint a guardian in my will?

If you have young children (under the age of 19), it is extremely important that you appoint a guardian in your will. By doing this, you will be able to appoint a person or persons of your choosing to care for your children in the event that both parents pass away, as opposed to leaving that decision to the court system and the Public Guardian and Trustee.

What property passes through a will and what does not?

Any assets which you hold in your name and of which you are the beneficial and legal owner will fall under your estate. There are things that do not fall into the estate, such as assets that are held jointly with others— joint bank accounts, real estate property, and vehicles; those assets will pass to the surviving joint owner through what is called “right of survivorship.” Plans which have designated beneficiaries (i.e. RRSP’s, TFSA’s) will pass outside of your estate, unless the estate is the named beneficiary.

Why do I need a power of attorney?

Power of attorney places the responsibility of choice with those whom you trust most. Without power of attorney, your family might have to go through the very painful and costly process of committeeship, which is when the court system gets involved to make choices on behalf of the incapable individual. In such a case, the court will try to find the most suitable person to be the individual’s committee. If there is no one suitable, the Public Guardian and Trustee will be appointed.

Does the term "Attorney" mean Lawyer?

In other jurisdictions (such as in the United States), the term “attorney” normally refers to a lawyer; however, attorney in the legal system of British Columbia denotes an individual appointed under a power of attorney to represent someone else. This person could be a spouse, relative, friend, or a legal professional.

Who can I appoint as my attorney?

They should be someone that you truly trust because the type of authority that you are granting to that person could be misused. The appointee must be an adult and preferably someone who is physically close to you so that they can be ready to help when needed. Most people appoint their spouse and if they have children, one of their adult children as an alternate or two of their adult children as alternates. If they don’t have a spouse, or adult child(ren) that they trust to assume this responsibility, they  may choose to appoint two close friends.

What may my attorney do on my behalf?

If you have a general power of attorney, they can do anything that you can lawfully do through an agent; however, you can restrict the authority of your attorney to specific matters, like the selling or purchasing of a specific property.

Can I appoint more than one person to be my attorney?

It is best to have a principal attorney as well as an alternate, in case the principal is unable to act on your behalf.

Why do I need a representation agreement? Are next of kin not consulted in a medical emergency if I am not capable?

You need a representation agreement if you want a specific person to make medical decisions on your behalf. Your next of kin may not be the most suitable person. If you have more than one person representing you as next of kin, they may not agree with each other, or their values and beliefs may be not the same as yours.

What is the difference between a section 7 representation agreement and a section 9 representation agreement?

A section 7 representation agreement covers medical and personal care decisions, as well as day-to-day financial decisions, and is mostly intended for people with limited capacity. The legal criteria that a person needs to meet in order to be able to make a section 7 (Standard Powers) representation agreement are very flexible and not as strict as those required for a section 9 (Enhanced Powers) representation agreement. Section 9 agreements are intended to be used by fully capable adults and includes authority only for medical and health care matters.

What is the difference between a representation agreement and an advanced directive? Do I need both?

The representation agreement states who is going to be your decision maker, while the advanced directive is where you have the opportunity to express your wishes for health and personal care decisions. It is better to have both documents to provide your representative with some guidance regarding how to decide on your behalf. While it is possible to have one without the other, having an advance directive alone without appointing a specific person to be your decision maker could be risky, as you would not have power over who speaks on your behalf. Advance directives are not designed to cover specific medical scenarios, so your precise wishes might not be properly followed.

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