What are the different types of Powers of Attorney in British Columbia?

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In BC, the different types of Powers of Attorney (POA) include:

(1) A General POA;

(2) A Springing POA and

(3) An Enduring POA.

A General POA in British Columbia applies to all assets owned by the donor and ends upon the incompetency of the donor. Section 9 of the Power of Attorney Act, R.S.B.C. 1996, c. 370 (“POAA”), states that a general power of attorney confers authority on the attorney to do on behalf of the donor anything the donor can lawfully do by an attorney. The attorney does not have the power or authority to make decisions about an adult’s health care or personal affairs, such as consent to medical treatment, or where the adult should reside.

A Springing POA refers to a document in which the attorney’s authority can be exercised only if certain events occur. This power of attorney might specify that it comes into effect only upon one or two medical doctors providing a statutory declaration stating that the adult is “incapable of making decisions about the adult’s financial affairs”.

An Enduring POA contains a clause that specifically allows the power of attorney to continue to be effective if the adult should later become incapable of managing their affairs. Without such a specific direction, at common law, a power of attorney ceases to have any effect upon an adult becoming incapable.

Click here to read our article When Does a Power of Attorney Take Effect?

Not what you’re looking for? For more articles on Power of Attorney click here.

For information on Trusts & Estate Law, click here.

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How to make changes to a Will

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Are you contemplating making changes to an existing Will but aren’t sure how?

There are three ways to change a non-electronic Will. If you have an electronic Will, the only way to make changes is to execute a new Will. For a non-electronic Will, you may choose to make a new Will, you may execute what is called a codicil, or you may make one or several interlineations.

A codicil is an instrument that is meant to be read with a Will and must meet all the same requirements as a Will (including being in writing, signed at its end by the will-maker, and having 2 witnesses), but only refers to the specific provisions that are to be altered by the codicil. If there is a relatively minor change, a codicil may be easier than making a new Will.

Interlineations are physical alterations to the existing Will which are made by adding or striking out words in the Will. These physical changes must also be witnessed and signed off on, and they can make a Will difficult to read and understand. Interlineations are not a recommended method of altering a Will, as the changes may not be found to be valid, and it is usually better to execute a new Will or a codicil. If you wish to make any substantive changes, making a new Will is the best method to ensure your wishes are followed.

You might not even need to make an alteration to your Will. Have you considered a Memorandum? Read our article on Adding a Memorandum to a Will.

Did you mean to ask How to Revoke a Will? Click here to read our article on Revoking a Will.

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How to Revoke a Will?

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What do you do if you have made a Will, but you have changed your mind and you want to revoke it? You have a few options to revoke a valid Will. You may choose to make a new valid Will that contains a clause that revokes all previous Wills. You also may burn the Will or tear it up, or otherwise destroy it with the intention of revoking it, or instruct someone to destroy it with the intention of revoking it. There is also the option for you to make a writing that declares your intention to revoke all or part of your Will.

If you make a writing stating your intention to revoke all or part of your Will, in addition to being in writing, it must be both signed by you at its end and signed by 2 or more witnesses who must be present for your signature. In addition to the above, if you have an electronic Will, you may revoke it by deleting the electronic version of the Will with the intention of revoking it.

You should be cautious that you do not accidentally revoke a Will when you do not intend to. If an original Will was last in the possession of the will-maker and it cannot be found when the will-maker dies, the presumption is that the will-maker destroyed it with the intent to revoke. This can be avoided by ensuring that the original Will is kept in a safe place that is known to the executor, such as with a lawyer’s office.

 

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What is a Memorandum to a Will?

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A Memorandum to a Will can be a helpful tool if the Will-maker has items they wish to gift. It is essentially a list or schedule of items and how the Will-maker wishes to distribute them. This may be something to consider for collectors, or those with numerous sentimental items that will be distributed to various persons or organizations.

There are two types of Memorandum: one that forms part of the Will, and one that does not. If the Memorandum is to form part of the Will, there are certain requirements that must be met. These requirements include that

  • The memorandum must be incorporated into the Will by reference,
  • it must be in writing, and
  • it must be signed before the Will is executed.
  • The assets/items must be clearly identifiable.

A potential downside of a Memorandum that forms part of the Will is that it is difficult to change or to add to, and the same strict rules that apply to a Will will apply to the Memorandum. It is recommended that if an item holds significant financial or sentimental value it should be included as a specific bequest in the Will rather than in a Memorandum.

The other option is a Memorandum that is not intended to be legally binding on the executor, but rather a guide directing the personal representative on how assets are to be distributed. The advantage is this form of Memorandum can easily be changed by the Will-maker, and they may add and remove assets/items as they go. However, because this form is a guide for personal representatives, not a requirement, there is a chance that the assets/items may not end up with who the Will-maker intends them to.

Read our Trusts & Estate Law articles for more information. You can also read our How to Make Changes to a Will Article.

If you’re not sure whether a Memorandum or a Bequest would be better contact Heath Law in Nanaimo to help you with your Will.

 

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Considerations of a Will-Maker in appointing a Guardian for children

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Planning for what happens when you die can be very stressful. In addition to planning for how you would like your property, possessions, and assets distributed, if you have minor children, you will also want to consider appointing a successor Guardian. A Guardian of a child is responsible for making parenting decisions, including making important decisions such as where the child will go to school, healthcare decisions, and overall ensuring to act in the best interests of the child.

It is important to consider appointing a successor Guardian if you have minor children. Generally, the biological parents of a child are the Guardians. A Step-parent of the child is not a Guardian of that child unless they have been appointed by a Court Order. If one Guardian parent dies without appointing a Guardian in their Will, the other Guardian parent will become the sole Guardian of the child. If a sole Guardian of a child dies without appointing a successor Guardian, the Public Guardian and Trustee will become the child’s property guardian, and the Director under the Child, Family, and Community Service Act becomes the child’s personal guardian.

Anyone else who wants to be the child’s Guardian will need to apply to the Court for an Order, which can be a stressful and time-consuming process. If a child’s remaining living parent is not a Guardian of the child when the Guardian parent dies, the non-guardian parent does not automatically become a Guardian of the child. They would need to apply to the Court for an Order to appoint them as a Guardian.

When choosing who you want to appoint as a successor Guardian for your child in your Will, the only relevant consideration is the best interest of the child. The person you choose will become your child’s legal Guardian when you die. It is important to take the decision of who to appoint seriously, as they will take on all of your parenting responsibilities and will be responsible for your child’s well-being. There are many things you should consider when making this important choice.

You may wish to consider things such as

  • the person’s relationship with the child,
  • whether they would be able to afford to look after the child, and
  • if they would be able to meet the needs of the child.

Other factors may include

  • religion (the child’s and the proposed Guardian’s),
  • the child’s cultural heritage,
  • whether the child would need to leave their school or community,
  • whether the proposed Guardian has other children and
  • any other factors that you consider important.

When determining the best interests of a child, every case is different. Often family members are appointed successor guardians.

Choosing who to appoint as a successor guardian for your children can be an overwhelming process, especially if you have a complex family dynamic. For help in creating a Will and appointing a Guardian for your children, contact Heath Law

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Considerations of a Will-Maker in appointing an Executor

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Are you in the process of creating a will and have questions about appointing an Executor?

When deciding who you will choose to be the Executor of your Will, there are various factors you may wish to consider.

These factors include:

  • the potential Executor’s willingness to act,
  • whether you trust them,
  • whether they are familiar with you, and
  • whether they have the time and the ability to carry out the duties of an Executor.

A good approach is to ask your potential Executor if they would be willing to take on the task.

Because your Executor will be responsible for carrying out the instructions in your Will and dealing with your assets and debts, it is best to choose someone you trust. If they are familiar with your situation, it will likely be easier to deal with your Estate. Your Executor must be able to handle the work that comes with handling an Estate, which includes

  • locating property,
  • applying for probate,
  • distributing assets and gifts to beneficiaries, and
  • filing your Estate’s tax return to name a few.

Most people appoint a family member or a close friend, however, you may also appoint a lawyer, a notary public, or a private trust company. You can appoint more than one Executor, in which case they will have to act together. You will want to consider if the person or people you wish to appoint as Executor will put the interests of the Estate first and if they will have the capacity to take on the task.

You should also consider if the person you wish to appoint is likely to outlive you and ensure to name an alternate Executor in case the person you have chosen is unable or unwilling to act. If you have concerns about a potential Executor acting in their own self-interest, you may wish to hire an impartial third party to be your Executor or co-executor (such as a lawyer or notary public). You will also want to consider how your Executor will be compensated. If your Executor is also one of your beneficiaries who is getting a gift under the Will, they will not be able to claim additional compensation unless you authorize such compensation in your Will.

Still have questions about your Will? Click here to read more, check out our blog article about Appointing a Guardian for children, or contact us.

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