1. Personal and Estate Planning Basics
Plan to Make a Plan
Nicole Garton, B.A., LL.B., TEP
Heritage Law
220 – 545 Clyde Avenue
West Vancouver, B.C.
778-786-0615 Ext.111
nicole@bcheritagelaw.com

2. Introduction
 Why you need a plan
 Personal and estate planning:
 Representation Agreement
 Power of Attorney
 Wills and Trusts

3. Representation Agreement
 Someone to make personal and health care decisions for you when you cannot
 Personal care: e.g. dress, diet, where to live, what activities to participate in
 Health care:
 Minor healthcare – exams, immunizations, medications
 Major healthcare – surgery, general anesthetic, chemotherapy, experimental treatment, drug trials
 Can include additional powers – move you physically, restraint
 Routine financial affairs – pay bills, file income taxes, deposit cheques, transfer funds
 Does not override your right to make decisions for yourself if you are capable of doing so
 Can specify your wishes regarding resuscitation, life support, pain control, end of life
 You must have capacity to sign and it needs to be witnessed
 Capacity level may determine whether Section 7 or Section 9 Agreement is appropriate

4. Who can be a Representative?
 Someone 19 years of age and older with no capacity issues
 Consider where they live
 Cannot be an individual who provides personal care or health
care to the adult for compensation, unless that individual is a
child, parent or spouse of the adult
 Cannot be an employee of a facility in which the adult resides,
unless that employee is a child, parent or spouse of the adult

5. Duties of a Representative
 To act honestly and in good faith
 To support the adult in participating in decision-making and then make
decisions if the adult cannot
 Keep records of decisions made on behalf of the adult (e.g. date,
circumstances, others involved and decision)
 To keep the adult’s personal information confidential
 To respect the adult’s religious views, and wishes if reasonable
 Concerns about Representative reportable to Public Guardian and
Trustee

6. Changing, Revoking or Ending a
Representation Agreement
 You must have capacity
 You must give written notice to the representative, alternate
representative (or any monitor in a Sec. 7 Agreement)
 Revocation is effective on the date notice is given or an alternate
date if so stated in the notice
 Agreement ends:
 on your death or Representative’s death
 incapacity of Representative
 if Representative is spouse, on separation as defined in Act
 Representative resigns and no alternate
 Court order or Committee is appointed

7. Medical Assistance in Dying
 You cannot give a Representative the authority to consent to
actively end your life
 Legislation requires that you have capacity to make that
decision yourself at the relevant time in accordance with
specific requirements and waiting periods
 You can express your wishes about prolonging life or quality of
life in the Representation Agreement to give your
Representative some guidance

8. Other Healthcare Decision Making
 Living wills
 Advance Directives
 Allows you to state your decisions about accepting or refusing health
care treatments directly to a healthcare provider
 Must address the health care treatment needed at the time
 Even if not applicable, still useful as an expression of wishes
 Temporary Substitute Decision Makers (TSDM)
 A person chosen by health care workers to make decisions for you if
you have no Representation Agreement, applicable Advance Directive
or committee – to supply informed consent
 Order of people to be asked is set by law

9. Other Healthcare Decision Making
 Temporary Substitute Decision Makers
 Must be 19 yrs+, capable, have no dispute with you, been in
contact with you in the past year, comply with your wishes
 Order:
 Your spouse (married, common-law, same sex)
 A son or daughter (birth order does not matter)
 A parent
 A brother or sister (birth order does not matter)
 A grandparent
 A grandchild (birth order does not matter)
 Anyone else related to you by birth or adoption

10. Other Healthcare Decision Making
 A close friend
 A person immediately related to you by marriage (in-laws, step-
parents, step children)
 If there is a dispute about who is to be chosen, health care
provider will decide
 You may not change the order of the list. A person lower down on
the list may only be chosen as your TSDM by the health care
provider if all the people above them do not qualify or are not
available
 The TSDM is legally required to make decisions that respect your
wishes
 Prepare a list of contact information for TSDM’s

11. Power of Attorney
 Allows someone else to handle your financial affairs e.g. file tax returns, banking, real estate, transfer assets, deal
with businesses
 Restrictions on certain people being named (same as Representation Agreement)
 Caution regarding non-resident attorneys
 Can name more than one attorney
 act together or separately
 can be a trust company
 Can be temporary, for specific purposes or enduring
 You must have capacity to sign
 Must be witnessed properly (certain people cannot be witnesses)
 If you want your attorney to be able to use some of your assets to benefit themselves or other family members, you
have to specifically state that; otherwise can only benefit you

12. Power of Attorney (cont’d)
 Only effective while you are living – at death, terms of a Will become effective
 Provides more powers to manage financial affairs than Representation
Agreement and keeps your health care wishes private but requires more
capacity than Representation Agreement
 Once signed by both parties it is useable, subject to terms of document
 Alternates and Revocation (capacity)
 Duties – similar to Representative
 Concerns about Attorney reportable to Public Guardian and Trustee

13. Committeeship
 If you cannot make decisions about your health care and
finances and you are mentally incapable of signing a Power of
Attorney or Representation Agreement, some one may have to
apply to handle your affairs
 Requires a court application and supporting documentation
from two doctors regarding incapacity
 Expensive and takes time
 You lose control over who will look after your affairs
 Public Guardian and Trustee may get involved

14. Estate Planning
 To leave your assets to those you wish – Will
 To avoid intestacy – dying without a valid Will
 To expedite transfer of assets
 To avoid/lessen probate fees
 To avoid Will variation claims
 To do some income tax planning
 Trusts
 Charitable Gifts
 Taxation

15. Wills
 Why you need a Will
 Determine who you want to benefit from your estate
 Determine who deals with your estate (executor)
 Guardianship and financial arrangements for minor children
 Provide for disabled dependents
 A will-maker must have testamentary capacity which means
understanding:
 The nature and effect of a Will
 The property/assets he or she has
 Who the will-maker has a moral or legal obligation to consider

16. Requirements for a valid Will
 Wills, Estates and Succession Act (WESA)
 Testamentary capacity
 16+ years
 Reflect the free will and choice of the will-maker (no undue influence)
 Be signed by the will-maker at the end, or someone at his/her direction, in the
presence of two witnesses and both witnesses must sign in the presence of
the will-maker
 Witnesses (19+, no beneficiaries/spouses as can invalidate their gift)
 Specific provisions relating to Wills made by registered First Nations
individuals

17. Invalidity of wills
 A Will must be signed properly to be effective but the court has
powers to cure defects in certain cases to give effect to will-
maker’s intention
 If a will-maker made a Will and then got married before March 31,
2014, the Will is revoked unless it was stated to be made in
contemplation of the marriage. If a will-maker married after March
31, 2014 the marriage does not revoke a Will.
 Separation, divorce or ceasing to live common-law results in
certain provisions regarding an ex-spouse being invalid unless a
contrary intention is set out in the Will
 Challenges to Wills – undue influence or incapacity

18. Executors
 Responsible for:
 Safeguarding the estate
 Gathering in the assets
 Paying your debts, including income taxes
 Dividing what remains of your estate among the beneficiaries named in your Will
 Caution regarding non-resident executors
 Choose someone who will likely be alive when you die and an alternate
 Can be a family member or trusted friend
 Can be a professional or trust company – higher fees charged, so usually only
justified for more complicated estates or challenging family dynamics

19. If there is a Will
 Generally, a Grant of Probate will be needed for executor to
deal with assets
 Involves paperwork, fees, legal advice (if desired), time
 Sometimes banks will transfer accounts without a Grant of
Probate to an executor named in a Will depending on the bank’s
assessment of the risk in doing so;
 e.g. whether the deceased was a long time client, the amount
of the account, who the beneficiary is

20. If there is no Will - intestacy
 If you do not have a Will, your estate will be distributed in a manner dictated by
law and may not reflect what your wishes would have been or benefit the
people or organizations you would have wanted to
 Re: property in deceased’s name only – spouse no longer entitled to live in
home for his or her lifetime but can purchase from the estate within a certain
time
 More cost to the estate as a Grant of Administration from the court will likely be
necessary
 The law dictates who has priority to apply for the Grant
 Can be detrimental to a disabled beneficiary receiving government assistance
payments because even a small distribution can make them ineligible for that
assistance

21. Expedited transfer of assets
 Some assets can transfer without going through the estate and therefore are not subject to
probate fees
 Probate fees are $6 per $1,000 between $25,001 and $50,000; and $14 per $1,000 from $50,001 and up
 Real estate held in joint tenancy passes to the surviving joint tenant
 Joint accounts pass to the survivor
 Caution regarding assets held jointly with adult children
 gift or held in trust for the estate?
 unintended consequences
 RRSPs, RIFs, TFSA’s, some pension plan benefits pass directly to named beneficiaries
 Life insurance passes directly to named beneficiaries
 Property subject to contractual rights or Family Law Act

22. Will variation claims
 Allows a spouse or children to contest the terms of the Will,
claiming inadequate provisions have been made for their proper
maintenance and support
 Spouse can be married or common-law
 No longer strictly a needs test so claim is available to independent
adult children
 Can try to document reasons for leaving certain people out of
your Will or for very disproportionate bequests
 Claims can only be made against the assets that form part of the
estate so some planning may be prudent

23. Trusts
 Separate entities from you personally
 Can be set up in a Will to benefit minor children, disabled
dependents, children until they reach a certain age, or adult
beneficiaries in need of some protection (testamentary)
 Other trusts:
 Individual and Family Trusts
 Alter Ego Trusts and Joint Partner trusts
 Can have specific directions to the trustee regarding payment of
capital and/or income or be discretionary

24. Trusts (continued)
 Income tax considerations (income splitting)
 A separate tax return is filed and is more expensive to set up in
the short term as assets have to be transferred into the trust,
but savings in the long term
 Terms of the trust instrument dictate what happens to assets
owned by the trust on death, rather than the Will and therefore
pass outside the estate

25. Charitable Gifts
 Nice way to recognize causes that are important to you or
organizations that you have benefited from during your life.
 A donation in a Will can offset income taxes owing as the
allowable deduction for charitable gifts in the year of death is
higher than ordinarily deductible.

26. Taxation
 At the date of death, the Income Tax Act deems that you have
disposed of all of your property at fair market value, which
often creates capital gains on which your estate will have to
pay taxes.
 Accountants are often involved in estate planning and estate
administration to minimize tax owing
 RRSP-RRIFs – income taxes have not been paid on these
funds during your lifetime and will be payable at death unless
these funds are transferred to qualifying individuals at date of
death i.e to a spouse’s plan (deferred)

27. Conclusion
 Tools are available for you to have a say in who and how your affairs will
be handled when you cannot make those decisions
 Have to have capacity to use those tools so need to plan ahead
 Having these tools will make things much easier for your loved ones
 Lots of resources available to help you – not necessarily just lawyers
 Get your ducks in a row!