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Estate Planning seminar with the RBC Financial Group on Saturday August 11, 2012

Lawyers Jeffrey S. Lowe and Robert Leong will be doing a seminar with Vivien Chow and Simon Cheng of the RBC Financial Group on Saturday August 11th at the Fraserview Golf Course. We will give an overview of Wills, Trusts, Powers of Attorney and Representation Agreements: why they are important, and how we can help you.

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If you fail to plan, you are planning to fail…

I believe that your Will is the most important document that you will ever create in your whole life. That’s because it is your last chance to make a statement in life about who or what is important to you. Or, perhaps by omission, who or what is NOT.

But so often, people put of making their will. As a lawyer, I have handled estates for people whose last will was drawn decades ago, when their financial, family, and charitable interests were much different than they are today. But when they leave this earth, the legal division of their assets is stipulated by their will…unless it is challenged in court.

So plan carefully; and review it periodically. Any time there are life changes in your family (eg marriages, divorce, births, deaths), you may want to review your will, and in any event, every 3 to 5 years.

Because you don’t want to fail to plan…

Representation Agreements, health care decisions, and financial decisions

A Representation Agreement allows you to appoint one or more Representative to make decisions about your Health Care, Personal Care, or Financial Matters when you are incapable of doing so. In other jurisdictions, this is known as a “Living Will”.  People become incapable in unpredictable ways; it happens to elderly pensioners, middle-aged workers with heart-disease, healthy young drivers and everything in between.

Health care decisions include emergency questions such as: will you take a treatment (ex: blood transfusions)?  Will you be resuscitated?  Will you refuse life-support?  It may also include decisions on palliative care – relief to lessen suffering during treatments, chronic illness or near end-of-life.  If no Representative exists, the responsibility follows a court order or it falls on the next available kin – such as your in-laws – as dictated by statute.  Who are you entrusting to make these decisions?

Personal care decisions affect your quality of life.  Every day you choose who to see, where to go, what to eat, what to wear, and whether to participate in religious practices.  Imagine that for the incapable person, someone else will choose.

Financial management decisions pay your bills, buy your food, pay off your mortgage, grow your investments and basically help you live.  Yet, if incapable, these responsibilities must fall on someone that the third-party banks, brokers, creditors recognize as having authority.

The Representation Agreement is very useful, but it must be prepared carefully with appropriate safeguards and protections for you; after all, your Representative could have the power of life and death over you!  You need to be able to terminate a Representative that you later having a falling out with.  With a prudently and comprehensively prepared Representation Agreement, you can have control even when you are no longer fit to.

Who decides:


Personal Guardian

 


Your Representative

 


You, in the past

 


Temporary Substitute Decision Maker

 

Legislation:

Patient’s Property Act

Representation Agreement Act

Health Care (Consent) and Care Facility (Admission) Act

Health Care (Consent) and Care Facility (Admission) Act

Instrument:

Court Order

You appoint in a Representation Agreement

You outline in an Advance (Medical) Directive

A Health Care Provider consults your relative

Appointment Time

After your incapacity

Before your incapacity

Before your incapacity

After your incapacity

Degree of  Decision-Maker’s Power:

Steps fully into your shoes

4 corners of Representation  Agreement’s authority

4 corners of your pre-decision

One-time consent

What happens if I give my son a share of my estate and he gets divorced?

This is one of the most common questions that I get asked by couples with children. I was recently asked this by a client, and I asked if her son’s marriage was having difficulties. She replied “Oh no, he’s not married; doesn’t even have a girlfriend yet. But I just want to be prepared in case…!”

Legally, there are different vehicles that we can use to plan an estate, including Trusts, Holding Companies, Gifts with mortgages or loans attached, and so on. However, often the question is not “What CAN I do”, but “What SHOULD I do?”

Thus, in helping clients prepare their Estate Plan, we will often advise them to bring in advisors such as relatives, pastors, and close friends as well as financial planners and accountants to help them decide the “what should’s” before we help them implement the “what can’s”.

The Power in Powers of Attorneys

According to a CBC news article published in February 2010, Canadians over 65 can expect to live longer due to medical strides against diseases that affect older people. On average, a 65 year old man can expect to live another 18.1 years, with people in British Columbia showing the longest life expectancy in Canada at 81.2. Older Canadians can plan their retirement and other needs knowing they can live longer.

We expect that we will be able to make our own decisions throughout our lives. But, our ability to make decisions will change, especially as we age. Unfortunately, one in five Canadians believes they know of a senior who might be experiencing some form of abuse. Financial abuse is the most commonly reported type of elder abuse. No one should be pressured, forced or tricked into giving money.

Personal planning is important to ensure that your wishes will be respected should a time come when you need assistance or must reply on someone else to make decisions for you. This also prevents the government or others you would not want from becoming involved in your personal and private affairs. Personal planning lets you stay in control.

In British Columbia, an enduring power of attorney (EPOA) allows you to give legal authority to someone you trust to manage your legal and financial affairs if you are no longer capable of making your own decisions. Financial affairs can include paying bills, doing your banking, even looking after your financial responsibilities to your dependents.

You can make an EPOA as specific or as broad as you want. You can also specify when it takes effect.

Careful planning with trained professionals will give you peace of mind.

 

What is a Representation Agreement?

In British Columbia, a Representation Agreement allows you to appoint a Representative to make decisions about your health care, Personal Care, and routine financial matters. In a sense, it is like a “Power of Attorney” over these non-financial matters.

The Representation Agreement, while very useful, must be prepared carefully, with appropriate safeguards and protections for you; it can cover end-of –life decisions, and your Representative does have the power of life and death over your body!

Representation Agreements are particularly useful if you are older, especially if you want to appoint someone who is not your spouse to be your Representative. In addition, it is important that you know how to terminate the Representation, for example, if you have a falling out with your Representative!

Powers of Attorney

With a Power of Attorney, you can appoint someone to manage your financial and legal affairs. This could include anything from depositing or withdrawing monies from your bank account, to buying, selling or mortgaging properties.

There are several kinds of Powers of Attorney. Often, people will just have a General Power of Attorney giving sweeping powers to do anything; however, unless you are giving a Power of Attorney to your spouse, we usually recommend conditions and limitations.

Generally, a Power of Attorney ceases when you lose the capacity to make decisions on your own. The exception to this is an “Enduring Power of Attorney”, which allows your Attorney to continue to make decisions  on your behalf, even if you lose the mental capacity.  The Attorney that you appoint has new responsibilities and liabilities under recent BC legislation to ensure accountability for your assets.

Still another form of Power of Attorney is the “Springing” Power of Attorney. These do not become effective until the happening of a specific event, such as mental incapacity, or a specific date, or other event.

Lowe & Company can advise you on the best kind of Power of Attorney to fit your situation, and help you draft it to suit your needs.