Our Services - Wills, Estates & Trusts

Estate services that we provide include:

• planning for future asset transfers to your children and others through wills, trusts, inter vivos asset transfers, and other forms of asset transfer
• providing advice on charitable giving and other estate planning techniques to minimize income tax consequences
• providing expertise on future control and distribution of assets through trusts of various types, including:
  • discretionary trusts (trusts which protect the rights of children or people with disabilities)
  • non-discretionary trusts (trusts for people with disabilities who can manage their own affairs)
  • inter vivos or living trusts (trusts set up while you are still alive), including revocable living trusts
  • spousal trusts (trusts you share with your husband, wife, or common-law partner)
  • alter-ego trusts (trusts for yourself to limit tax liability)
  • spend-thrift trusts (trusts which control excess spending)
  • testamentary trusts (trusts which come into affect through your will)
  • others.
• planning for future incapacity using tools such as enduring Powers of Attorney and Representation Agreements
• assisting with current incapacity issues through court appointed decision-makers - private "committeeship" applications
• assisting with estate administration, including getting wills probated, and applying for "Letters of Administration" when someone dies without a will
• challenging wills and trusts through the Wills Variation Act, the Trustee Act, and other laws
• providing advice to Executors/Executrixes, Trustees, and Representatives on their roles and obligations, and on getting proper remuneration for their services.

REPRESENTATION AGREEMENTS

Fortunately, since 2000, the Representation Agreement Act has permitted adult British Columbians to make decisions regarding their health and personal care. It is similar to an Enduring Power of Attorney, in that it may also cover financial and legal matters, but it has a much broader scope.

The person making the Representation Agreement can express their wishes respecting desired medical care within the document. However, the primary purpose of a Representation Agreement is to appoint a representative and give him/her the power to determine the wishes of the adult at the time that a decision needs to be made.

The Representation Agreement Act sets out procedures for the creation, signing, and challenging of a Representation Agreement. There are actually two types of agreements described in the Act. A "standard" (or "Section 7") Representation Agreement covers routine financial, personal care, and medical decisions. This type does not need to be prepared by a lawyer. However, most people prefer the "Enhanced" (or "Section 9") Representation Agreement, which can cover all matters, including "end of life" decisions. A lawyer must be consulted when making an Enhanced Representation Agreement.

Some people also make Enhanced Powers of Attorney, which give decision-making powers for financial and legal matters, even after the loss of mental capacity. However, as powers of attorney do not permit the attorney to make decisions related to health care, they do not replace a Representation Agreement.

People sometimes confuse Representation Agreements with "Living Wills". A Living Will is a document that permits an adult to express his/her wishes regarding medical treatment in the event of subsequent mental incapacity. While sounding similar to a Representation Agreement, a Living Will has several problems. First, it only describes the types of treatment that are permissible. Given advances in medical care, and the time lapse that often occurs between making the Living Will and its use, it often no longer reflects the person's wishes. Second, a Living Will does not permit the appointment of a decision-maker. As a result, if a "judgment call" must be made, no authority is given through a Living Will. Third, except in very narrow circumstances, Living Wills are not legal in British Columbia. Hence, doctors do not have to follow the directions outlined in a Living Will.

Discretionary Trusts and Estate Planning for Dependants with Disabilities and Special Needs

When a child with a disability turns 18 years of age, he or she may be eligible for Disability Assistance (a disability pension. . . it used to be called "GAIN") from the provincial government. These benefits are means-tested; which means that a person can only receive them if they have assets below a certain amount. Each province has different allowable assets, but in British Columbia, the maximum amount of assets is $3000 for a single person. As a result, money received from parents, grandparents, uncles, aunts, brothers, sisters, etc. can affect the person's ability to continue to receive Disability Assistance.

A trust is an arrangement where a person (the "trustee") holds the money for the exclusive use or benefit of another (the "beneficiary"), at the request of a person who wishes to establish the trust (the "settlor"). Courts in Canada have determined that money held in a discretionary trust is not an asset for purposes of determining eligibility for receiving disability assistance. Money held in a discretionary trust allows people with disabilities to continue to receive provincial assistance.

Trusts can be Testamentary (made through a will) or Inter vivos (meaning a living trust - a trust set up while the settlor is still alive). For a living trust, it can be a revocable living trust, or a non-revocable living trust.

Lawyer practicing in Wills, Estates and Trusts:

• Halldor Bjarnason