When we refer to Estate and Personal Planning, what do we mean?
We usually prepare three planning “instruments” to help manage your finances, property, legal affairs, personal care, and health care. The three principal instruments are your:
- Last Will and Testament
- Enduring Power of Attorney, and
- Health Care Representation Agreement.
In some cases, we also prepare specialized trusts to handle your estate in addition to your will, to control tax exposure, or to protect (and keep confidential) certain assets or property.
Last Will and Testament
Your Will deals with your estate and everything over which you have control or responsibility after you pass away. In a will, you appoint one or more executors to act as your representative. They will take control of your estate and settle your debts, manage anything that needs to be managed (such as your company) before distribution, and then distribute your net assets.
Executors must act according to a number of laws, but you can vary their powers and obligations in your will.
As we mentioned above, your will deals not only with your assets and liabilities, but with everything over which you have control or responsibility. If you run a company, your will can assist with how to step into your shoes as a director or officer until the company is wound up or replaces you.
If you have children, your will should contain guardianship clauses ensuring that you – and not an outside source – choose how they are to be cared for. This also applies to dependent adults for whom you are responsible.
Make sure that you discuss your wishes clearly and honestly among your family, and with your lawyer. These matters, from children’s guardians to corporate management to the distribution of your assets are too important for you to be silent.
Enduring Power of Attorney
A Power of Attorney allows someone whom you trust and appoint to act in your stead with respect to financial, business, property, and legal matters. It can be as broad or as limited as you choose. In some cases, we prepare a limited one for a specific purpose, such as selling a property while you’re out of town. A Power of Attorney can not authorize someone to make health care decisions on your behalf. For that, see “Representation Agreement” below.
In the context of estate and personal planning, we prepare an “Enduring Power of Attorney.” We call it “enduring” because it continues to be effective when you no longer have capacity.
As an Enduring Power of Attorney may allow the person you appoint to deal with banks, etc., on your behalf, we recommend choosing someone whom you trust fully not to abuse that power, and who knows you well enough to know your wishes and act in your best interests.
If you have real estate, your power of attorney must be witnessed by a lawyer or notary public to be used with the Land Title Office. In any case, we recommend preparing these with a lawyer who can tailor it to your needs and preferences, and who can advise you of the issues to consider.
Health Care Representation Agreement
A Representation Agreement is an agreement between you and another person (or people) whom you appoint to assist with health care and personal care decisions. In British Columbia, there are two kinds of Representation Agreements – a Section 7 Standard Agreement and a Section 9 “Unlimited” Agreement. The S.7 Standard Agreement provides limited health and personal care powers, and also provides limited financial powers similar to a watered-down enduring power of attorney. As it is form-based and designed not to require a legal professional, it also includes a number of certificates to be prepared and signed. In truth, to a lawyer it is more work for less power. In nearly every case, estates lawyers prefer to address financial matters in Enduring Powers of Attorney and care decisions in Section 9 Representation Agreements.
Our approach is to begin with a flexible tool and then limit or expand it as needed.
An Unlimited Representation Agreement (Section 9) can allow someone to make decisions about where you live, what you eat, whether you are given certain medical treatments, whether medical treatments are discontinued or withheld, and many other matters. Only a S.9 Representation Agreement can empower someone to instruct a physician to remove life support, or to administer only pain control medication.
In most cases, we also include a paragraph giving the representative access to your health and medical records.
The Planning Package
We have experience preparing bespoke legal instruments, tailored to your specific needs. In addition to the above, we prepare highly specialized property transfer documents, deeds of trust and trust declarations and indentures, codicils (a codicil is an amendment to a will), and sophisticated combinations of corporate and trust entities to hold and deal with your property.
Most of the time, our clients require what we call the “Standard Planning Package,” which is a Will, an Enduring Power of Attorney, and a Representation Agreement. When we are retained by a married or common-law couple, we usually prepare a mirrored pair of the planning package.