Presented by Maria T. Holman - Webster Hudson & Coombe LLP for the Estate Planning Council of Abbotsford on Wednesday, April 20th, 2016

1. LIFETIME PLANNING
© Maria T. Holman LLM

2. 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

3. available tools
 Financial/Legal:
Joint ownership
Inter-vivos Trusts
Powers of Attorney
Standard Representation Agreements
(S. 7) (overlaps with health)
Committeeship (court appointed)

4. available tools
 Personal/Health:
“Living Wills”
“Enhanced” Representation
Agreements (s.9)
Advance Directives
Committeeship (Court Appointed)

5. 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
Maria T. Holman LLM

6. 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
Maria T. Holman LLM

7. 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
Maria T. Holman LLM

8. 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
Maria T. Holman LLM

9. 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
Maria T. Holman LLM

10. 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
Maria T. Holman LLM

11. 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
Will
Maria T. Holman LLM

12. 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
Maria T. Holman LLM

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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
Maria T. Holman LLM

19. 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

20. 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
Maria T. Holman LLM

21. 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
Maria T. Holman LLM

22. 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
Maria T. Holman LLM

23. 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
Maria T. Holman LLM

24. 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
Maria T. Holman LLM

25. 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