LIFETIME PLANNING

© Maria T. Holman LLM

planning for incapacity

A Will (Last Will and Testament) is for when you die A person may need help before then: Financial and Legal Health and Personal Care

available tools Financial/Legal: Joint ownership Inter-vivos Trusts Powers of Attorney Standard Representation Agreements

(S. 7) (overlaps with health) Committeeship (court appointed)

available tools

Personal/Health: “Living Wills” “Enhanced” Representation

Agreements (s.9) Advance Directives Committeeship (Court Appointed)

a brief history, part I

Reform of the planning tools started with the passage of several laws in 1996: Representation Agreements Health Care Consent Adult Guardianship Act

Idea was to protect vulnerable persons, but affected everyone equally Major parts of these laws are still not in effect

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a brief history, part II

S.7 Rep agreements were to replace powers of attorney altogether Increased complexity and cost Not appropriate in a business context Unnecessary except in narrow circumstances

Power of Attorney Act was updated in 2011 (15 years later) Rep Agreement act also amended

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a brief history, part III

• Adult Guardianship Act never fully came into effect: was to replace the Patients Property Act

• Patients Property Act is archaic, but works for appointment of Committees

• Committees can have power over both finances and health care matters

• Reports to the Public Guardian

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a note about joint ownership

• Fine between couples, until one dies or becomes incapable

• Be careful because ownership means ownership (tax issues, creditors, family law)

• Decreases flexibility • Trusts can be a good solution but expensive

and add complexity • Neither JO nor Trusts apply to health care

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powers of attorney

Attorney is an agent Can be “General” or “Enduring” General used for business and one-

off transactions If enduring power, then Part 2 of the

POA Act applies and additional rules apply

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validity of powers of attorney

Pre Sept 2011 POAs are still valid Attorney must sign For Land Title purposes, signing must

be done in Land Title format Note that pre-2011 POAs are subject

to the new rules

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taking instructions

The information needed to properly prepare a POA is the same as needed for a will: Capacity, understanding of what the

document allows, effect of POA My practice is to do POAs with a

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practical matters

Pre 2011 form: up-date if possible (add signature(s) of attorney(s) Send it to the Land Title Office as soon as

possible if there will be a land transfer Avoid enduring POAs if what is need is a

general (Part 1) form: especially if donor will be out of the country at the time of a transfer

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getting the name(s) right

Important any time, but critical for powers of attorney Check government ID and land title

documents (POA must match land registry) If the client has multiple names, or variations

of their names, consider creating more than one POA If things are really messy, consider advising

the client to amend land registry filings

springing powers

Avoid these if possible Can cause unforeseen problems for the

attorney If incapacity is to be the trigger, carefully

consider how and by whom proof of incapacity is to be given Consider that a person may need the attorney

to act before fully incapable

revocation

Most precedents contain a provision revoking all prior powers of attorney and all prior S.7 representation agreements Use caution: discuss with the client if

this is appropriate or desirable Existing appointments may be beneficial

if left in place

how many attorneys?

Options: – One attorney – One attorney, one or more alternates in same

instrument – Multiple attorneys who must act together – Multiple attorneys who may act separately – Multiple attorneys who must act by majority

My preference: more than one, but only one per instrument

signing requirements

Witnessed by One lawyer or notary (LTO) Two non-lawyer/notary witnesses (non-LTO) Attorneys must also sign (same rules apply) Use LTO format if the donor owns

real estate

representation agreements

Used mainly for health care only (s.9 agreements) May also be used for financial matters (s.7

agreements) Can be used with an Advance Directive or

the decision making can be left up to the representative

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temporary substitute

decision makers HEALTH CARE CONSENT AND CARE

FACILITY ACT Used if there is no appointed

representative Decision making is more limited Leaves open the possibility for disputes

among persons ranking equally

representation agreements

Choice of representative: issues will be similar to power of attorney May want a different family member

as alternate (spouse is usually first choice) Consider conflicts of interest if

representative is also the beneficiary

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representation agreements

S.7 “Standard” Agreement Useful if client has less than full capacity A monitor must be appointed Representative is limited to certain financial

matters only: Personal care where finances are impacted Routine management of financial affairs

Use only if client is not capable of making a POA

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representation agreements

S 9 “non-standard” agreement Agreement for health care only No financial powers Not restricted to the types of health care

defined in the Act My form includes “living will” language, as

guidance to the representative

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advance directives

I’m advised health care providers do not recommend them Useful if the client has specific beliefs

about health care that must be respected no matter what the consequences To give an Advance Directive, the client

must understand the nature and consequences of the directions

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advance directives

An advance directive must not be contrary to law Must be fully competent when the directive

is made Will not be able to make an advance

request to die in case of irremediable illness or intolerable suffering An advance direct may work with, or over-

ride, a Representation Agreement

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Thank You

MARIA T. HOLMAN | WEBSTER HUDSON & COOMBE LLP Suite 510 - 1040 West Georgia Street,

Vancouver BC V6E 4H1 direct 604.443.3661 | fax 604.682.3438 |

mth@webhudco.ca

April 20, 2016