Many British Columbians are currently at home due to self-isolation, mandatory quarantine or lay offs and in search of projects to pass the time. Believe it or not, there are a number of projects related to your legal affairs that you can tackle from the comfort of your own home. This is the first article in a series of three articles covering potential at-home projects related to your legal affairs. In this article, we will focus on projects related to estate and incapacity planning. In the next two articles we will cover projects related to businesses and real estate.

If you do not have an estate and incapacity plan in place, now is a great time to start the process!

1. “Estate planning” addresses what happens to your assets and debts when you die.

If you do not have a validly executed will, your estate will be distributed in accordance with the intestacy rules set out in the Wills, Estates and Succession Act (“WESA”). These rules consider factors such as whether you have a spouse, whether you have children and whether your spouse is the parent of your children. Please note that step-children are not considered your “children” for the purpose of the intestacy rules set out in WESA.  If you have minor children who do not have a second guardian who survives you, the Public Guardian and Trustee of British Columbia will become responsible for your children’s financial and legal rights and the Ministry of Children and Family Development will become responsible for your children’s health, education and upbringing.

By putting a will in place (along with various other estate planning tools such as joint tenancy ownership, designated beneficiaries and/or trusts), you can ensure that your estate and guardianship of minor children, if any, are handled in accordance with your wishes. Important decisions to consider include:

a. Who would you like to be your executor? Your executor will have the responsibility of taking control of your assets when you pass away and distributing your estate according to the terms in your will. For considerations on who to appoint as your executor, visit our blog article “Choosing your Attorney, Executor and Representative” which can be found here: https://touchstonelawgroup.com/choosing-attorney-executor-representative/

b. Who would you like to be the guardian of your minor children? Your children’s guardian will have all responsibilities related to your minor children until they reach the age of majority. This is an extremely important and personal decision that should be taken very seriously.

c. How would you like your estate to be distributed? Your will should be carefully crafted to reflect your wishes. You can distribute your assets in any way that you wish; however, please note that certain people (namely, your spouse and children) may be able to obtain an order from the court to have the distribution varied if you do not adequately provide for them in your estate plan.

d. Do you have any other wishes that you wish to express? For example, burial or cremation, organ donation, etc.

2. “Incapacity planning” addresses what happens if you need someone to assist you in making financial, legal, medical or personal care decisions or if you need someone to make these decisions for you.

Two of the main documents used in incapacity planning include power of attorneys and representation agreements. A power of attorney (“POA”) is a document that grants someone (your “attorney”) the legal authority to manage (or help you manage) your legal and financial affairs on your behalf while you are still alive. A representation agreement (“RA”) is a document that grants someone (your “representative”) the legal authority to make decisions (or help you make decisions) with respect to your medical and personal care while you are still alive.

If you lose capacity to manage your own legal and/or financial affairs without a POA, someone can be appointed as your committee through a court process which can be a lengthy and costly process. If you lose capacity to manage your own medical and personal care without an RA, a temporary substitute decision maker may be chosen by your health care in accordance with the Health Care (Consent) and Care Facility (Admission) Act, which hierarchical list can be found here: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96181_01#section16 Alternatively, someone can be appointed as your committee through a court process which can be a lengthy and costly process.

Estate and incapacity planning does not have to be a sad or stressful process. Putting an estate and incapacity plan in place can be extremely powerful and stress relieving! The first step is contacting our office for a FREE questionnaire to start mapping out your estate and incapacity wishes.

Please note that we highly recommend seeking legal advice in preparing your will and incapacity planning documents to ensure that they are valid, enforceable and operate in accordance with your wishes.

If you do have an estate and incapacity plan in place, consider reviewing your plan to ensure that your estate and incapacity planning documents continue to operate in a manner that reflects your wishes.

Some changes in your affairs that may change the operation of your estate planning document and/or wishes include the  birth or death of a person close to you, commencement or termination of a marriage-like relationship (including a common-law relationship), adoptions, storage of reproductive material, beneficiaries reaching the age of majority, acquisition or disposition of assets (including real estate and gifts), relocation outside of British Columbia, undertaking of any liabilities, and changes in tax, wills or estates laws.

We recommend having a lawyer review your estate and incapacity planning documents (even if they reflect your wishes regarding appointments and distributions) if your will was executed prior to March 31, 2014 or if your documents were executed outside of the Province of British Columbia.

Other things that you may want to consider with your current estate and/or incapacity plan include:

1. Where are your original documents located? For things to consider, visit our blog article “Where to Store Your Estate Planning Documents” which can be found here: https://touchstonelawgroup.com/store-will/
2. Have your original documents been altered in any way (Ex. staples removed for photocopying)?
3. Are your executor(s), guardian(s), attorney(s) and/or representative(s) still willing and able to act in their respective roles if necessary?

We at Touchstone Law Group LLP understand that the COVID-19 pandemic has taken a financial toll on many British Columbians. Accordingly, we are offering payment plans to ensure that no one is prevented from taking steps to ensure that their legal affairs are in order due to financial struggles during this time. For more information about the projects discussed above or our payment plan, please feel free to reach out to one of our knowledgeable and helpful lawyers.

Author: Danielle (Dani) Brito

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of estate planning and estate administration at the following: