Estate Planning

Estate Planning

Estate planning in British Columbia involves three distinct components: the Last Will and Testament, the Power of Attorney and the Representation Agreement.

The Last Will and Testament

In British Columbia the principal tool of any estate planner is the Last Will and Testament (the “LW&T”).

If properly prepared, then executed, and if drafted in adherence to your legal and moral duties (to spouses and children) as set out in the Wills, Estates and Succession Act  (“WESA”) the LW&T is the only effective tool to ensure that your wishes are enacted and your loved ones are provided for.

Although there are Will Kits available to assist with the preparation of a LW&T the guidance and assistance of a professional is the best way to ensure that unforeseen problems do not arise. Often litigators joke that Will Kits keep them busy in their practices. You can have peace of mind in knowing that our experience both in drafting Wills and in picking them apart positions us well to guide you in your estate plan.

In addition to ensuring that you are fully advised of your legal and moral duties we will ensure that the strict document execution requirements as set out in WESA are complied with.

The engagement of a professional firm ensures adherence to the law. When preparing your will, Nanaimo Estate Law will take great care to understand your specific circumstances, financial and otherwise, so that a challenge to the LW&T is rendered less likely, and your true wishes are put into effect through the documents that we prepare.

Your LW&T takes effect on your death at which time your Power of Attorney and Representation Agreement are no longer of any force or effect.

The Power of Attorney

A Power of Attorney (“POA”) allows a third party, designated by the donor (you), to step into your shoes for the purpose of making financial and legal decisions. The POA can take effect either immediately, or upon your subsequent mental incapacity, which can be required to be confirmed by medical professionals.

There are two key roles for the person designated as your Power of Attorney: Firstly to implement transfers of property and to carry out the management of assets for your benefit; and Secondly, to make decisions of a legal nature should you be unable to do so yourself.

The requirements of a valid Power of Attorney are governed by the Power of Attorney Act. When you give a third party your Power of Attorney they become a trustee to you, and are responsible to you and your estate in the event of any misdeed on their part. A Power of Attorney should only be granted to someone in whom you have a complete understanding and who you trust.

Typically a person who seems particularly keen on being your POA is not a good choice as the duties are onerous and the benefits are non – existent for that designated person. The best pick is someone sophisticated enough to understand what is involved and morally grounded so as to not see this as an opportunity to take advantage of you.

We would be happy to advise you and assist you with the preparation of all documents related to a valid Power of Attorney as a part of your estate plan.

Timothy Huntsman is pleased to provide advice, and prepare all documents related to Power of Attorney for your estate planning purposes.

The Representation Agreement

A Representation Agreement (“RA”) pursuant to the Representation Agreement Act allows a third party representative (“Representative”) to step into your shoes to make decisions of a domestic/housing or health care nature, always in the event that you are unable to make those decisions yourself as a result of mental incompetency.

How does this work in effect?

Let’s say for example: You are involved in a horrific car accident and you have suffered a brain injury.; You are no longer competent to manage your affairs and you are in a wheelchair.; You had always lived in a two story townhouse with steep concrete steps.; The doctors think that they should amputate what is left of your leg because of the danger of infection spreading.; You are now in the hospital but your spouse who is your appointed Attorney (POA) and Representative wants to get you back home so that you can be cared for there with your family.

The POA can be used to sell your current house and to purchase a more suitable accommodation that is wheelchair accessible. The RA can be used to make the decision to amputate the leg before it causes more problems.  The RA can also be used to decide that it is time to take you home from the hospital to the new home and that you should not be spending all your time with the new friends that you made at the hospital who have been asking you for money.

Your Representative should be someone in whom you have complete knowledge and trust.

Nanaimo Estate Law* can provide you with advice and prepare a Representation Agreement for your estate planning purposes.

Disability Trusts

Trust Deeds – A Result of Special Needs and a Complex Society

Separate and apart from the numerous types of trust relationships that arise from our informal relationships there are two principal reasons to create a Trust Deed today.

The most common reason is to protect the interests of a disabled person and make provision for their financial future. This can be down through a trust while enabling them to continue to receive certain benefits to which they may be entitled such as social assistance and housing benefits. The trust is needed because if the disabled person held the assets in their own name they might be disentitled from benefits or fall prey to persons who would seek to be trusted, but actually had ulterior motives.

The second principal reason that a trust may be created today is to maintain control of a family business over successive generations. This is a complex area of law and would require the professional advice of accountants and lawyers to navigate the issues that arise.

It is important to note that beneficiaries of trusts have the right, within reason, to question the actions of the trustee. This right has evolved over hundreds of years of common law, and is also specified in the Trustee Act in B.C.

Timothy has worked on many trust files throughout his career, and has also focused specifically on examining the laws pertaining to the taxation of offshore trusts and assessing exactly what constitutes a breach of trust by a trustee.

Nanaimo Estate Law* is pleased to help with the preparation of trust deeds as an estate planning tools, or regarding the affairs of a person with a disability. We are also happy to meet with beneficiaries and trustees. We have successfully handled many lawsuits, both for trustees and beneficiaries.


Please visit Huntsman Law* for more information pertaining to Nanaimo Estate Planning.

*Denotes Timothy J. Huntsman Law Corporation