COVID-19

You may find the two resources below to be useful during this COVID-19 crisis:

Nidus Personal Planning Resource Centre is hosting webinars on personal planning documents (i.e.  Wills, Powers of Attorney, Representation Agreements and Advanced Directives) throughout May.

https://www.nidus.ca/training-2/

The People's Law School also published a new article "Preparing or Updating Your Will During Coronavirus"

https://www.peopleslawschool.ca/everyday-legal-problems/health/coronavirus/preparing-or-updating-your-will-during-coronavirus

I encourage you to reach out to your local notary public or lawyer if you do wish to retain the services of a professional in creating or updating your personal planning documents.

Personal Planning - a summary

If you are thinking of having another person making healthcare or personal care decisions on your behalf in British Columbia, you should know you cannot create a Power of Attorney (POA) for these kinds of decisions-making authority. This can be quite confusing for other Canadians as most other provinces allow the use of POA for healthcare decisions.

 

A Power of Attorney is only for legal and financial decision making in British Columbia. For example, if you want someone (i.e. the attorney) to manage your bank accounts, or sign documents when you are not able to.  While you can technically make a POA on your own with the appropriate witnesses, Land Title Office and most financial institutions will not accept DIY document. If you have the need for a Power of Attorney, you should consult with a notary or lawyer to discuss your needs, and the consequences of granting such power to another person.

 

Healthcare and Personal care decisions

 

So what is personal care? The Representation Agreement Act defines it as

“(a) the shelter, employment, diet and dress of an adult,

(b) participation by an adult in social, educational, vocational and other activities,

(c) contact or association by an adult with other persons, and

(d) licences, permits, approvals or other authorizations of an adult to do something;"

 

Some people may have heard of “Living Will”. A living will is not recognized in British Columbia. Instead, you have 2 options:

 

 1. A Representation Agreement - 2 different versions (Section 7 or Section 9 RA). RA is the equivalent of a POA for healthcare/personal care decisions. You are appointing someone to speak/make decision on your behalf.

 

2. An Advanced Directive (AD). AD is your way of consenting (or withholding consent) for medical treatments. For example, you do not want blood transfusion. AD is only for healthcare matters.

 

The law allows for 2 different kinds of RA, depending on what you want the Representative to do on your behalf. For example, a section 7 RA (also known as the Standard Representation Agreement) allows for major/minor health care decisions, personal care decisions, routine (minor) financial management, and to obtain legal services on behalf of the person. The routine financial management power is very limited - primarily for paying bills at a financial institution and receiving certain benefits from the government. A monitor must be appointed before the routine financial management power can be exercised.

 

A section 9 RA (also known as non-standard Representation Agreement) differs from a Section 7 RA in that the representative is allowed to make end-of-life decisions (i.e. pulling the plug) and if so allowed on the document, to exercise power to override your wishes (for example, a person suffering wanting treatment for mental health issues may not express their wishes in a coherent manner). Unlike a section 7 RA, no financial power of any kind is allowed.

 

An advanced directive is useful if you have certain healthcare wishes you wish to execute. Unlike a Power of Attorney or a Representation Agreement where you are appointing someone to speak/act on your behalf, an AD is meant to provide or withhold consent in advance on procedures you wish/do not wish to have. For example, if you have a strong belief you don't want blood transfusion, an advanced directive is your way of telling physicians, nurses and paramedics your wishes when you are not able to communicate with them.

 

An advanced directive is NOT the same as a No-CPR order (also known as Do Not Resuscitate/DNR Order). A DNR or No-CPR order is signed by a physician or nurse practitioner for those approaching the natural end of their lives or suffering from a life-limiting or life-threatening illness.

 

You do not need a lawyer or notary to make an AD or a RA. You can make either document on your own, with the appropriate witnesses. The Province of British Columbia published a guide known as My Voice: Expressing My Wishes for Future Health Care Treatment, with the forms and instruction for you ready to print and sign. This is a free resource, and I encourage everyone to take advantage of the tools.

 

Resources

If you need further information, I encourage you visit the NIDUS website. NIDUS is a not-for-profit resource centre dedicated to the education and awareness of personal planning tools available in British Columbia. You will find various resources on all things personal planning related - estate planning, Power of Attorney, RA/AD. You will also find webinars and public sessions dedicated to educating the public on these topics.

 

If you suspect someone is abusing their authority to care for another person, contact the Public Guardian and Trustee of British Columbia (PGT). If you suspect a person is being abused or neglected, visit the PGT website on more information about who to report the issue.

 

Legal Resources

There are some good legal resources online and in-person, which could give you some basic information. Again, they do not substitute legal advice from notaries or lawyers. The links below are controlled by the respective organizations, and maybe changed without notice. Phone numbers and URL is up-to-date as of the day of writing.

Not sure where to start?
Call 211.  BC211 is a multi-lingual service line that can direct you to the various resources from government, health, social and other referral services.  http://www.bc211.ca

Information/Resources
Courthouse Libraries BC 604-660-2841 librarian@courthouselibrary.ca   Various locations across the Province http://www.courthouselibrary.ca	The Courthouse library provides legal research and information to the members of the public, notaries and lawyers. Please note libraries are only open to the public during the business hours of the courthouse. After-hour access is only granted to notaries, lawyers and members of the judiciary.
The People’s Law School 604-331-5400 http://www.publiclegaled.bc.ca/	The People’s Law School provides booklets, brochures and other education materials for educating the public about the laws in BC.
Clicklaw http://www.clicklaw.bc.ca/	A website operated by the Courthouse Libraries BC, providing general information on various areas of law.
Tenant Resource & Advisory Centre 1-800-665-1185/ 604-255-0546 http://www.tenants.bc.ca/main/	The Tenant Resource & Advisory Centre provides tenants with legal education and information about residential tenancy law.
Nidus Personal Planning Resource Centre info@nidus.ca   http://www.nidus.ca/	The Nidus registry created plain-language guides on personal planning documents such as a representation agreement, advanced directive, powers of attorney and more.
BC Centre for Elder & Advocacy Support 604-437-1940 / 1-866-437-1940 http://bcceas.ca/	BC Centre for Elder Advocacy and Support provides information on the legal rights of elderly people, and to bring awareness of elder abuse to the public.
Justice Education Society 604-660-9870 http://www.justiceeducation.ca/	The Justice Education Society primarily provides information about the judicial and legal system.
JusticeBC http://www.justicebc.ca/	The website of JusticeBC is operated by the Ministry of Justice of BC. The information presented mostly focus on the criminal justice and family law issues.
YWCA Legal Educator - Andrea Vollans 604-734-5517 ext 2235 http://www.ywcavan.org/programs/legal-education	The legal educator provides peer support on matters related to income assistance, housing, and child custody matters.

Referrals
Legal Services Society of BC (Legal Aid) 604-601-6000 http://www.lss.bc.ca/	You will find some publication on specific areas of law at the LSSBC website. Further, if you meet the eligibility requirement, Legal Aid may be able to assist you with your case.   The interests from trust account held by BC Notaries and lawyers are automatically forwarded to the Notary Foundation and Law Foundation, which in turn, provide a grant to fund the Legal Aid services in British Columbia.
Access Pro Bono 604-482-3195 http://accessprobono.ca/	If you meet the eligibility requirement for Access Pro Bono, you may get specific legal assistance from notaries or lawyers who volunteer their time to provide pro bono (free) services to the community.
Community Legal Assistance Society 604-685-3425/ 1-888-685-6222 http://www.clasbc.net/	CLAS specializes in providing legal services in selective areas of the law such as human rights and housing matters.
Legal Advocacy – MOSAIC 604-254-9626 http://www.mosaicbc.com/settlement-services/general-support/legal-advocacy	MOSAIC Legal Advocacy provides low income immigrants and refugees on immigration and poverty law matters.
Canadian Bar Association - Lawyer Referral Service 604-687-3221/1-800-663-1919 http://www.cbabc.org/For-the-Public/Lawyer-Referral-Service	If you require the assistance of a lawyer, but do not know one, you may consider using the CBA Lawyer Referral Service. For a small fee, you can get a 30 minutes phone consultation.
UBC Law Students' Legal Advice Program 604-822-5791 http://www.lslap.bc.ca/main/	If you are a low income earner requiring legal advice, but am not able to retain a lawyer for service, you may try the LSLAP referral process. Law students at UBC can provide guidance to your legal issues. There is also a manual published by LSLAP that provides in-depth information on various branches of the law.
Office of the British Columbia Ombudsperson 1-800-567-3247 https://www.ombudsman.bc.ca/	The Ombudsperson investigates complaints made by the public against a public or government agency for unfair treatments. The Ombudsperson has jurisdiction over Crown Corporations such as ICBC and BC Hydro, government ministries and agencies, hospitals, school districts,  universities and colleges, local governments, Translink and the Land Title and Survey Authority.
Office of the Police Complaint Commissioner 1-877-999-8707 https://opcc.bc.ca/	The Office of the Police Complaint Commissioner (OPCC) is provides impartial civilian oversight of complaints against police officers in BC, except for members of the Royal Canadian Mounted Police (RCMP).
Civilian Review and Complaints Commission for the RCMP 1-800-665-6878 http://www.cpc-cpp.gc.ca/	The Civilian Review and Complaints Commission for the RCMP is responsible for providing civilian oversight of complaints made against a member of the Royal Canadian Mounted Police.

Regulatory Agencies
Society of Notaries Public of British Columbia 1-800-663-0343 http://www.notaries.bc.ca	The Society of Notaries Public of British Columbia (SNPBC) Is the self-regulating regulatory body for Notaries Public In British Columbia. Complaints or concerns can be addressed to them.   Note: The Society cannot insist on notaries to provide service, continue to act, or withdraw their service. This is a matter of professional judgement, and is up to each notary to make his or her own decisions.
Law Society of British Columbia 1-800-903-5300 https://www.lawsociety.bc.ca/	The Law Society (LSBC) is the self-regulating regulatory body for lawyers In British Columbia. Complaints or concerns can be addressed to them.   Note: The Society cannot insist on lawyers to provide service, continue to act, or withdraw their service. This is a matter of professional judgement, and is up to each lawyer to make his or her own decisions.
Real Estate Council of British Columbia 1-877-683-9664 http://www.recbc.ca	The Real Estate Council of British Columbia (RECBC) is responsible for the licensing of real estate agents/firms, and those involved in the rental and strata property management. The Council has the power to discipline members if they are found to have contravened the rules and laws governing those entities.
Financial Institutions Commission 604-660-3555 http://www.fic.gov.bc.ca/	The Financial Institutions Commission (FICOM) is responsible for regulation of mortgage brokers, sub-brokers and firms, matters relating to strata developments, financial institutions (i.e. credit unions), and pension plans under provincial jurisdiction.
Insurance Council of British Columbia 1-877-688-0321 http://www.insurancecouncilofbc.com	The Insurance Council of British Columbia is responsible for the licensing of insurance agents, salesperson, adjusters and firms in BC.
Judicial Council of British Columbia http://www.provincialcourt.bc.ca/judicial-council	The Judicial Council of British Columbia is responsible for the screening and handling of complaints against provincial court judges and justices of the peace. Complaints against a superior court justice should be directed to the Canadian Judicial Council.
Canadian Judicial Council 613-288-1566 info@cjc-ccm.gc.ca https://www.cjc-ccm.gc.ca	The Canadian Judicial Council is responsible for handling complaints against federally appointed judges (i.e. judges from the BC Supreme Court and Court of Appeal, as well as Federal Court, Federal Court of Appeal, Court Martial Appeal Court of Canada, Tax Court of Canada and the Supreme Court of Canada).
Consumer Protection BC 1-888-564-9963 http://www.consumerprotectionbc.ca	Consumer Protection BC is responsible for the enforcement of consumer protection laws in BC. Specifically, they regulate the debt collection, travel agencies, payday loans, cemetery and funeral services, home inspectors, credit reporting agencies, consumer contracts and gift cards under provincial jurisdictions.
Financial Consumer Agency of Canada http://www.fcac-acfc.gc.ca	The Financial Consumer Agency of Canada (FCAC) is responsible for enforcing consumer protection laws with respect to the federally regulated financial institutions (i.e. banks), and various voluntary codes with the financial industry.
Residential Tenancy Branch 1-800-665-8779 http://www.rto.gov.bc.ca	The Residential Tenancy Branch (RTB) promotes the understanding of tenants and landlord rights under the laws of BC. If the tenant and landlord cannot reach an agreement over an dispute, the RTB may hold a dispute resolution hearing to settle the dispute with an arbitrators.

Q&A - Why not become a lawyer?

Why don't you just become a lawyer?

I get this question all the time when I introduce myself to others as notaries. Before answering the question, it is important to understand the legal profession first.

It is hard to explain our role in non-contentious legal work unless I am speaking to a person who understands 'lawyers' encompasses two distinct roles: Barrister and Solicitor. Traditionally, those two professions play distinctly different role in the legal system. A Barrister's role is to advocate for their clients in courts - complex litigations, appeals to the final courts of appeal or speciality areas of law. They are retained by the solicitor to advocate for the client, and do not generally deal with 'simple' legal matters. On the other hand, a Solicitor's role is to provide legal advice in both contentious and non-contentious matters and draft all the necessary paperwork for the client or barrister.

Section 19 of the Legal Profession Act of BC makes it clear a lawyer who is admitted to the bar in BC is admitted as both Barrister and Solicitor (and is also a notary public). Some countries such as the US, Canada and Singapore have a fused profession that allows a lawyer to practice in both roles. Other jurisdictions such as England, Ireland, Hong Kong and some Australian states continue to maintain them as distinct professions.

As a notary public in BC, it is my role to provide legal advice in non-contentious legal matters. We handle conveyancing, contract, wills & estates and personal planning work - work that would be undertaken by a solicitor if notaries did not exist. Some lawyers restrict their practice to certain areas of law such as conveyancing matters. In such scenario, BC notaries can already undertake the exact same work as lawyers do. Indeed, we are held to the same standard as lawyers.

Notaries have its presence in BC since 1865, and were the first legal professional available. In contrast, lawyers have only been in BC since 1869. Lawyers and BC notaries have co-existed ever since in providing their respective clientele legal services.

The bigger question as to why I would not want to become a lawyer?  First, law school graduates must undergo a formal process called clerkship (providing legal research and assistance for judges) or articling (pupilage in other jurisdiction) with a supervising lawyer before they can be licensed to independently practice law. Articling positions are increasingly difficult to find. Indeed, some have resort to unpaid articleship in a historically paid role to complete their final journey to becoming a lawyer.

Secondly, while most people think of lawyers as the only legal professionals available; more and more jurisdictions are engaging in the idea to expand access to legal service. For example, England and Wales offers the traditional solicitors and barristers, but also allows Chartered Legal Executives, Notaries, Licensed Conveyancers and Probate Practitioners to practice in wide ranging areas of law. Washington State also recently launched its Limited License Legal Technicians scheme to expand access to legal service/advice. As such, you can see being a lawyer is not the only way to practice law. I enjoy doing the work that I do as a notary, and feels I can satisfy my client's needs with the education I have in law without resorting to a law degree.

Services of a BC Notary?

British Columbia Notaries public are commissioned by the Supreme Court of British Columbia in providing non-contentious legal services (i.e. where parties are in agreement). We are officers of the law, having sworn an oath of office before a Justice of the Supreme Court.

Unlike notaries public for the rest of Canada (except Quebec) and the United States, BC Notaries can and are required to dispense legal advice when the circumstances required. We are not "professional witnesses". We are held to the same professional standards as lawyers. We are regulated by the Society of Notaries Public of British Columbia, and each member holds a $15 million dollars liability insurance policy.

We practice in the following areas of law/provide the following service:

·         Certified True Copies

·         Administration of Oaths

·         Drafting and executing affidavits and statutory declaration

·         Conveyancing – the transfer of legal title of properties

·         Powers of Attorney

·         Wills (with certain limitations)

·         Act as Executor for estate matters

·         Representation Agreements

·         Advanced Directives

·         Contracts

  

DIY (Do-It-Yourself) Will?

I have been asked several times about DIY Wills, and thought to share with you my thoughts:

Some people feel their assets are simple enough that they do not need legal advice for executing their Wills. There is nothing, legally speaking, barring you to write your own Will, either using a DIY kit that you can purchase at a stationery store or bookstore, or using online templates for creating your Will. 

This is a matter of choice. However, as a notary, empowered by the laws of British Columbia, who drafts Wills and other personal planning documents, I would alert you to some of the pitfalls for not seeking the advice you need:
(This list is by no means exhaustive, and is provided for discussion purposes only. They are not legal advice!)

1. A DIY Will could be an invalid Will. If you use the wrong online template, or bought the wrong kit, you could be drafting a Will that does not comply with the requirements under BC Laws. For example, some Wills template come with an "affidavit for execution". This is not known to BC Laws, and seeing that form should alert you to the fact you are not looking at the right template. Even without the affidavit form though, does not guarantee you the wording, witness requirements, etc are in conformity to our legislation.


2. Your capacity, at the time of writing, may be questioned after your death. Your beneficiaries (and disappointed beneficiaries) may decide to challenge your DIY Will, on the grounds that you lacked the capacity to create a Will. As a legal professional, it is my job to interview you, and ascertain your capacity before executing your Will. Should the Will be questioned, I may be called upon to court to testify your capacity, and the legality of the Will. 


3. Executors and Beneficiaries. These are areas that require a lot of thinking and planning to ensure a smooth transition of your assets. What happens if your executor cannot or refuse to act after your death? The death of a beneficiary?


4. You may not have given full thoughts on your assets, and thereby creating unnecessary headache for your executor or beneficiary . Most people associate their assets to their bank accounts, your personal collection of collectibles (coins, stamps, etc), and other physical possessions. But what about your insurance policies, registered accounts, land/home, car, etc? 


5. You may decide to disinherit (or 'cut out') one of your kids. While it is your freedom to do so, you need proper legal advice on this matter. Some clients are shocked to learn about Wills Variation (also known as Dependants’ Relief in other provinces) whereby certain disappointed beneficiary can go to the Supreme Court of BC to contest your Will. This can leave your final wishes uncertain.  


6. Your choice of wordings may not show clear intent. A Will, as a legal document, should bear the proper legal language. A clear sentence, in your mind, expressing your intention may not be clear to those reading the Will. By expressing your intention in the correct technical legal language, you lessen the likelihood of court challenges.


7. Questions. Have you thought about what to do with your body? Who will file your final income tax on your behalf? What steps need to be done in order to distribute your asset? How to go about getting death certificates, and other necessary paperwork for pensions, banks, etc? What about other personal planning documents, such as Powers of Attorney, Advanced Directives or Representation Agreements?

As you can see, getting proper legal advice is important. After all, your Will is your last document spelling out your wishes. When a Will is badly drafted, inevitably it may lead to court challenges that drain your estate, cause hardship to your loved ones, and requiring them to spend unnecessary time and effort to rectify the situation.    

Do notaries bear the same responsibilities to clients as lawyers?

The answer is YES!

Notaries owe the same duty of care to our clients as lawyers.[1] This issue has been the subject of much litigation in the past, and each time the courts have held notaries bear the same responsibility to their clients as lawyers do.

Esser v Luom, 2004 BCCA 359

Anakotta et al. v Perusini et al., 2004 BCSC 168

Flandro v Mitha et al. (1992), 93 D.L.R. (4th) 222

Ruxton and Ruxton v Kelly, Peters & Associates Ltd. et al., [1985] 1 W.W.R. 66

Ferreira and Ferreira v Amando & Pereira, [1985] 1 W.W.R. 78

Dorndorf et al. v. Hoeter, [1981] 29 B.C.L.R. 71

 

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[1]  http://www.notaries.bc.ca/resources/Upload/04-09-2014-09-33-05_BecomingANotary-Sept4,%202014.pdf