Choosing who will act for you
Money and property: an enduring power of attorney. Under the Power of Attorney Act, an enduring power of attorney lets the person you name (your attorney) handle your financial and legal affairs, and it keeps working, or starts working, when you become incapable. It must be signed in front of two witnesses. You cannot appoint someone who is paid to give you personal or health care, or an employee of the care facility where you live, unless they are your child, parent or spouse. Your attorney must act honestly and in your best interests, keep your property separate from theirs, keep records, and can make gifts or loans from your money only within the limits the Act sets or the document allows.
Health and personal care: a representation agreement. The Representation Agreement Act offers two forms. A section 7 agreement covers personal care, routine financial matters and health care other than certain prescribed kinds, and can be made by someone who could not make a contract, because the Act sets a different test. A section 9 agreement can give wider authority, for example deciding where you live, or giving or refusing consent to health care in situations you describe even if you object at the time; you must understand what you are signing to make one. Our pages on powers of attorney and representation agreements explain the choices, and our article on power of attorney versus executor explains why the two roles do not overlap: the attorney’s authority ends at death, and the executor’s begins.
If you have been named as the attorney. Acting under a power of attorney is a legal duty, not a favour. Keep the adult’s money in their own accounts, record what you spend and why, and do not pay yourself or make gifts unless the document or the Act permits it. If a bank or another institution will not accept the document, or you are unsure how far your authority goes, the court can give directions on application. We advise attorneys on these questions before problems arise, and executors who later need to review what an attorney did.
If there are no documents. When an adult loses capacity without these documents, a family member may have to apply to the Supreme Court under the Patients Property Act to be appointed committee, with affidavits from two physicians, or the Public Guardian and Trustee may become involved. See committeeship applications and what committeeship involves. Signed documents avoid that application and keep the choice of decision-maker with you.
Your will completes the set. Where a trust suits better, for example an alter ego or joint partner trust for someone aged 65 or older, or a disability trust for a beneficiary, we explain the tax and probate effects before anything is signed. Our estate planning group is led by Sandy Minh Abley, who has practised since 2005 and is a Certified Financial Planner.
Making documents that hold up later
Much of the evidence in a later dispute is created on the day the will or power of attorney is signed. When we act on a will or a planning document for an older client, we meet the client without the family members who benefit, ask open questions about what they own and who might expect to inherit, and keep notes of the answers. Where there are signs of memory loss, we may suggest a medical opinion close to the signing date. These steps do not guarantee that a document will never be challenged, but they give the court evidence from the time it was made.
The same care applies to gifts during life. A large gift or a transfer of the home to one child, made while a parent is frail or dependent, can be attacked later on the ground of undue influence. Courts look at whether the parent had independent legal advice that went beyond explaining the paperwork and dealt with the consequences and risks of the gift. Our article on independent legal advice and undue influence explains what that advice should cover.
Once the will is signed, a wills notice filed with Vital Statistics records where the original is kept. It costs $17 and can be filed online or by mail; the Surrey Service BC office does not accept it.
When an attorney or a late-life will is questioned
An attorney who may be misusing the role. Anyone who believes an attorney is abusing or neglecting the adult, or not following the document, can report it to the Public Guardian and Trustee, which may investigate or apply to court. An attorney must produce the records the Act requires at the adult’s request, and the court can make orders about the attorney’s powers and about releasing information. An attorney also cannot make or change a will for the adult: section 21 of the Act says any such will has no effect. After a death, the executor can ask for an account of what the attorney did with the money.
A will made late in life. A challenge to a will can turn on capacity (did the will-maker understand what they owned, who might expect to benefit, and the effect of the will) or undue influence. Under section 52 of the Wills, Estates and Succession Act (WESA), once a challenger shows that someone who benefits was in a position where they could dominate the will-maker, that person has to prove the will was not the product of undue influence. Notes kept by the lawyer who took instructions, and medical records from the time, can be central. Read more on lack of testamentary capacity, suspicious circumstances and undue influence and capacity.
A will that leaves out a spouse or child. Under WESA s.60 the court can vary a will that does not adequately provide for the will-maker’s spouse or children. The action has to start within 180 days from the date the BC grant issues, and the executor must be served within 30 days after that. See contesting a will in BC and the wills variation deadline.
These cases are heard in the Supreme Court. Our estate litigation team is led by Candace Cho, KC and acts for people challenging a will and for executors and beneficiaries defending one. The first 30 minutes of a consultation on a dispute are free.
Probate when the deceased lived in White Rock
There is no courthouse in White Rock. The courthouse closest by road is the Surrey Provincial Court on 57 Avenue, but the Provincial Court has no role in estates: WESA gives that work to the Supreme Court. The province allows a grant of probate or administration to be sought in any Supreme Court registry, and documents can also be filed online. The New Westminster Law Courts on Carnarvon Street are about 31 km by road from White Rock City Hall and the Vancouver Law Courts about 48 km.
The steps are set by Part 25 of the Supreme Court Civil Rules. The applicant sends a notice of the proposed application to the beneficiaries and others entitled to it, waits at least 21 days, and files the application with a wills notice search certificate and a statement of the estate’s assets and liabilities. The search can be ordered by mail from Vital Statistics, or in person at a Service BC counter, though not at the Surrey, Burnaby or Vancouver offices. White Rock has no Service BC office.
If you are the executor. The province’s guidance sets out the job: list the deceased’s assets and debts and their values, find the family members and beneficiaries, take control of the property, pay the debts that are proven, file the final tax returns, then sell what needs selling, distribute, and account for everything. An executor who hands out the estate while proven debts are still unpaid can be held personally responsible for them. Some banks will release smaller accounts without probate under their own policies, but a home in the deceased’s sole name will need a grant before it can be sold or transferred. We act for executors from the first meeting through to the final accounts.
The probate fee is $6 per $1,000 of estate value between $25,000 and $50,000 and $14 per $1,000 above that; nothing is charged on the first $25,000. A condominium worth $900,000 with no other assets would attract a fee of $12,050. After the grant, the personal representative must wait 210 days before distributing, unless the court allows it sooner or the people who could claim against the estate consent (WESA s.155). Our probate and estate administration lawyers, led by Veronica Manski, take executors through each step. See also how long probate takes and how long it takes to receive an inheritance.
Our estate lawyers
Our lead lawyers, Candace Cho, KC and Judith A. Janzen, joined forces in 2012. The estate team includes:
- Candace Cho, KC, principal lawyer and leader of the estate litigation practice
- Veronica Manski, associate counsel, who leads probate and estate administration
- Sandy Minh Abley, estate planning, powers of attorney and representation agreements
- In estate litigation, Valerie LeBlanc, Jackson Todd, Katya Richardson, Kevin Campbell (also in French), TJ Garcha, Louisa Ledesma, Julia Pinnock and Jesse Patrao
The full team is on our team page.
Common questions
Can the person I name under a power of attorney change my will?
No. Section 21 of the Power of Attorney Act bars an attorney from making or changing a will for the adult, and any such will has no effect.
What happens if my parent loses capacity without a power of attorney?
A family member may need to apply to the Supreme Court to be appointed committee, supported by two physicians’ affidavits, or the Public Guardian and Trustee may step in. Documents signed while capacity is clear avoid that step.
Where is probate filed for someone who lived in White Rock?
At any Supreme Court registry in BC, or online. New Westminster is the closest by road. The Surrey courthouse is a Provincial Court and does not deal with estates.
Should I register my will?
A wills notice is optional, but it helps your executor find the original. It records only where the will is kept, not what it says.
Is the first meeting free?
For a will or estate dispute, the first 30 minutes are free. For planning documents or probate, we explain the cost when you book.
