December 2018 - Garton & Harris

How much authority does a power of attorney really have?

December 24, 2018/in Power of Attorney/by gartonandharris

When choosing someone to look after their affairs when they are incapable, Canadians have to keep a few things in mind. Those who hold a financial power of attorney in British Columbia are in positions of authority over someone else’s money, so choosing a person who is trustworthy and knows something about finances is pretty important. That being said, there are certain things such a person can’t do according to the law.

If the person who has the power of attorney wants to make drastic changes to the grantor’s will by renaming beneficiaries or gifting money to family members or charities, he or she could find him or herself in some legal trouble. It all depends upon the laws of the province in which the grantor resides. And the grantor’s will should be reviewed to ensure any gifts are keeping in line with an existing will.

As for changing beneficiaries on things like insurance policies or RRIFs, that is not acceptable. But in British Columbia, the person who is acting on a power of attorney has the authority to keep the designation of a registered plan or may change the plan type from an existing type to another. In any case, the person in authority should act diligently since the courts don’t often look favourably to such changes unless there is a good reason for the change.

A British Columbia lawyer may be able to offer assistance by explaining legislation governing a power of attorney to a client and/or to the person named as acting on a power of attorney. A lawyer can shed light on the giving of gifts depending upon each client’s individual case. A lawyer will always act in the best interests of his or her client.

Separating Couples Must Change Their Wills Immediately

December 17, 2018/in Uncategorized/by gartonandharris

Many couples think that the process of separating from each other will automatically change their wills, powers of attorney, insurance beneficiaries, representation agreements and trusts. It does not. The two ex-spouses are in for a rude shock. If they do not actively change these documents, their ex-spouse will remain the beneficiary of their wills and retain any authority assigned to them in a power of attorney or representation agreement.

This is true even for divorcing couples as far as powers of attorney and other estate planning documents are concerned. Under British Columbia laws will unless the testator ex-spouse clearly states that their divorced spouse is to receive a bequest. But all other documents remain unchanged.

The Two Spouse Problem

This situation becomes even more challenging if the two spouses decide not to get divorced but simply separate as they have no plans to remarry. But what happens if one of the ex-spouses – E – forms a common-law relationship later in life? Then E will have two spouses: the ex-spouse – X – to whom they are legally married, and the common-law spouse – C – they have been involved with for more than two years.

Problems might arise before E’s death if E’s powers of attorney named X as the person with the authority to make decisions if E fell ill or became incapacitated. C would expect to make these decisions but might find that X has the power even though E and X might not have contacted each other for years.

After E dies, C, the common-law spouse, would expect to receive benefits under E’s will and other instruments. But if E and X did not divorce, X would likely remain the beneficiary of the will. X could receive the life insurance monies as well.

C’s only recourse would be to go to court if C and X could not reach an amicable solution. C’s problems could be avoided if E’s will and other documents had been changed when E and X separated.

When Should Changes Be Made?

Separating spouses should make quick changes to their wills, powers of attorney, representation agreements and trusts when they are certain their separation is happening. All that needs to be done is to remove the soon-to-be-ex-spouse from

Wills. This ensures the ex-spouse will not be a beneficiary of the will.
Insurance beneficiaries. Select another person or name the estate as the beneficiary. The latter ensures that the benefit amount will be distributed according to the will’s terms.
Powers of Attorney. Select another trustworthy person to be granted the authority to make decisions in the event absence or incapacity.
Representation Agreements. Assign the power to make financial or medical decisions to another trusted person.
Trusts. Select another reliable person to act as trustee.

Each ex-spouse can make any additional changes necessary to their wills, agreements and estate plans after the separation details have been finalized.

The impact of separating from a spouse often upsets people so much they don’t think of all the consequences the separation has on their estate plans. During a separation, it is best to consult with experienced wills and estates lawyers. They can assist spouses with making the changes necessary to completely remove an ex-spouse from their legal affairs.

Wills still need to be hand signed in British Columbia

December 10, 2018/in Wills/by gartonandharris

The 21st century is no doubt the technological age. Many legal documents are actually executed online using an electronic signature. But when it comes to wills, it’s not that easy for British Columbia residents. Actually, all Canadians can electronically sign invoices, quotes, proposals, contracts and many other kinds of documents. Wills, however, are another story.

E-signatures are governed by both federal and provincial laws. All provinces and territories, along with the federal government say wills, along with some other documents like those pertaining to family law, must be in hard copy form and signed by hand. Only when they are signed as such do the courts consider them to be legal.

Documents that need to be hand signed are referred to as wet documents. In addition to wills, they include any official documents from a court, codicils, promissory notes and some trust documents. Also, there is a government enactment for certain documents which authorizes or disallows e-signatures. A promissory note, for example, comes under federal jurisdiction through the Bills of Exchange Act.

The courts need to see hard copies of some documents signed the old-fashioned way. There are many legalities associated with various legal documents such as wills. Obtaining legal counsel to avoid making a serious error on some of these documents — like signing certain ones with an e-signature, which would not hold up legally — might be a wise move. A British Columbia lawyer is in a position to help his or her clients make sure estate planning documents are signed properly according to the letter of the law.

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