Estate Planning: Beyond Just a Will

When most people think of estate planning, they focus on what happens after death, often assuming that writing a Will is the entirety of the process. However, estate planning is often not enough, and adults must make a personal plan in case of an illness, injury, or incapacity. Personal planning also ensures you are preparing for your lifetime needs, providing for loved ones, and safeguarding your assets. A lawyer can help you determine which documents best achieve your goals and provide peace of mind during your lifetime.

Power of Attorney

A Power of Attorney (POA) is a legal document that allows an appointed individual, called the “Attorney,” to manage an adult’s legal and financial affairs. POAs can be structured in two ways:

1. Active Immediately: The Attorney can act while the adult retains capacity to manage their affairs.
2. Triggered by Incapacity: The Attorney only steps in when the adult loses capacity.

To sign a POA, the adult must understand their assets, liabilities, and the implications of the document. Because a POA grants significant authority, it’s crucial to appoint someone you trust implicitly.

Most financial institutions require the POA to be reviewed and validated by their legal departments before the Attorney can give instructions pursuant to the POA. Many institutions now also require direct confirmation from the adult before registering a POA. This can create challenges if the adult is unable to provide confirmation when the Attorney needs to act. To avoid delays, it’s highly recommended to register POAs with financial institutions as soon as they are executed.

Section 9 Representation Agreement

A Section 9 Representation Agreement empowers an appointed individual to assist with major and minor medical decisions when the adult cannot make those decisions themselves. The appointed representative has broad authority, including:

• Managing daily life decisions, such as housing arrangements.
• Moving the adult to a care facility if necessary.
• Refusing or consenting to health care, including life-sustaining treatment.

Within the agreement, adults can specify their wishes regarding life-preserving care, offering valuable guidance to the representative during difficult decisions. However, the adult must fully understand the nature and consequences of the agreement to execute it.

Section 7 Representation Agreement

For adults who lack the capacity to make a POA or Section 9 Representation Agreement, a Section 7 Representation Agreement may be an option. This agreement provides more limited authority to the appointed representative, who can:

• Manage personal care.
• Handle routine financial affairs.
• Assist with some health care decisions, though they cannot refuse or consent to life-preserving treatment.

Unlike other documents, a Section 7 Representation Agreement can be executed even if the adult lacks the capacity to make contracts or manage their own affairs. The adult must, however, express a desire for help and approve the chosen representative.

Committeeship

When an adult loses capacity, a court may appoint a committee to oversee their personal, legal, and financial affairs. A Committeeship requires a medical assessment by two physicians in good standing with the College of Physicians and Surgeons of British Columbia.

Even when other estate planning documents are in place, a Committeeship may be beneficial—especially if the adult’s needs exceed the scope of a Section 7 Representation Agreement.

Planning for Peace of Mind Personal planning is about more than preparing for what happens after death. It’s about ensuring that your wishes are respected and that you and your loved ones are cared for during your lifetime. Contact one of our estate planning lawyers to discuss which documents are right for you.