FAQ

Notarizations

I need to get something “notarized” – can you do that?

Usually, yes. But we can’t just notarize anything. “Notarizing” a document means we are performing a special legal function – it’s a formal process that differs depending on the function. Sometimes when people need things “notarized”, they need:

• to be put under oath or to make a solemn declaration
• to have us verify their identity
• to have us certify something for you
• to make a certified true copy of something

If you have a document you have been asked to get notarized, please call us and explain to us what you have. It’s important that you read any instructions you have been given about the document you have been asked to get notarized. If you need both a witness and a notary, you need to bring your own witness to your appointment. Fees for notarizations vary, depending on the type of notarization you need:

• there is generally a flat fee for the first signature, and fees for additional signatures
• there are fees for each exhibit that needs to be attached to an affidavit or statutory declaration

I need to have something “witnessed” – can you do that?

Notaries and lawyers don’t generally act as witnesses; the only documents that notaries and lawyers will witness are documents which they have prepared themselves, such as Wills or agreements.

I have a document from another country – can you take my signature on that?

Possibly. Your notary or lawyer must be able to understand the document the language is in if you are asking them to take your signatures on the document itself. Alternatively, you can have the document translated into English by a certified translator. Sometimes you will be asked to get an “apostille” for your document. This is a process used in certain countries to certify your signatures. We do not use this process in Canada. Instead, we use a process called “authentication”. Authentication certifies your identity and your signatures on the documents. Your notary or lawyer will watch you sign the document, create a certificate that says they verified your identity and watched you sign the document (among other things), and that package then gets sent to various places, like the Society of Notaries Public of British Columbia or a consulate or embassy for further signatures. If you need to have a document authenticated, please be prepared for it to take a significant amount of time – it might take up to 3 months to work through the various steps. Authentications can also cost a fair amount of money, so please ask us for an estimate.

Will you notarize my Will?

No. Wills are not required to be notarized in order to be effective. If your notary or lawyer is making a Will for you, they will (along with another staff member) act as your witnesses. If you have prepared your own Will yourself, you will need to follow the execution instructions that came with the Wills kit or the version of the document you downloaded. We also don’t notarize agreements you made yourself, promissory notes or other similar home-made documents.

What do I need to bring  to my appointment?

You will need to bring two pieces of current, valid government ID, along with your documents and any instructions that come with it. Please make sure the names on your ID match, and that your ID has not expired, or been broken.

Estate Planning

I don’t want to make a Will – if I make a Will, I will die.

This is a common belief. It has arisen because many people put off making their Will until just before they die, which leads to the belief that one leads to the other. Correlation gets confused with causation. Unfortunately, there is no way to really counteract this belief, except to say that making a Will and dying do not have a causal link. We encourage everyone to make or review a Will at several key points in their lives:

• when you have had children
• when you have had a marriage or divorce
• when you have had a major change in assets
• if you have had a major change in health

I’m not sick yet, so I don’t need these documents yet, right?

On the contrary! The time to make these documents is when you are well. You must be “mentally capable” when you make these documents – that means that you need to pass certain tests which can include (but are not limited to):

• telling us about your spouse and children
• listing your assets and debts for us, and telling us how much they are worth
• explaining to us who has rights to your assets
• talking to us about who you have moral obligations towards
• discussing what happens if you are “cutting out” family members
• discussing with us what these documents do, and how they could work for you.

If you are not able to discuss these issues with us, we may not be able to make these documents for you. If you are on medications which interfere with your decision making, then that may also mean we are not able to do these documents for you. And, if we have to come to you, or the work needs to be done more quickly than a two-week turnaround, there will be additional charges. If you have left it too late, and we can’t make you these documents, your family may need to go to court to apply to be your “adult guardian” or committee – that process can take up to six months, and can cost anywhere between $3,000 to $15,000. It’s much easier (and less expensive) to make these documents when you are healthy and well. Besides, your family doesn’t really want to be running around trying to find legal advisors for you when you are sick – they would be better off spending time with you instead….

If I make a Power of Attorney, I will lose control over my life.

Powers of Attorney can be dangerous documents, and if you don’t pick a trustworthy person to help you, there is the possibility that your attorney could run away with all of your assets, or give them away inappropriately. However, making a Power of Attorney (and appointing someone trustworthy in that document) can also be one of the most effective ways of keeping control over your life and your assets. Attorneys are required by law to:

• foster your independence
• use your assets for your personal care and health care first
• monitor your finances
• keep their assets separate from their own
• account to you for their work

If you are not satisfied with the work your attorney does, you can (if you are still mentally capable) revoke, or cancel your power of attorney.

Do I really need a Will?

Usually yes. If you have minor children, you can appoint guardians for those children in your Will. If you have not appointed guardians for your minor children, then the Minister of Child and Family Development becomes the guardian for your children until one of your family members goes to court to apply to be their guardians. This means your children could potentially be living in foster care until your family is granted guardianship by the court. If you are leaving your estate in a non-traditional way (excluding certain people, or giving unequal shares to people), then you need a Will to set out that distribution scheme. If you are contemplating doing this, we will have a discussion with you about wills variation law, and other issues that might affect your decisions. If you need a trust for a disabled child, or for a spouse, then that can be set out in your Will. A Will also sets out who will do the management of your estate – who will be your executor. Without a named executor, someone in your family has to apply to court to be the administrator of your estate – more money…. Your Will can also talk about who gets your household goods and personal effects (along with your other assets). We don’t usually put funeral instructions in a Will anymore (by the time your family proves that that will is your last one, it’s WAY too late for your funeral!), but can do that if it is important to you.

How do I appoint someone to help me with my personal care and my health care?

If you get sick, or you are living with a long term illness such as Alzheimer’s, dementia, Parkinsons, cancer, etc., then you may want someone to help you with your day to day life issues (personal care) or your health care. Personal care includes things like where you live, whether you work or not, what kinds of social or educational events you take part in, what your dress and diet look like, and whether you go into a care home (short term or long term stays). Health care includes things like routine checkups at the doctor or dentist, medications, treatments, controversial or experiment treatments (organ donations or drug trials), and end-of-life issues. If you can’t make these decisions for yourself, then:

• no one has the right to make decisions for you about your personal care, without a court order or a representation agreement
• certain people (called temporary substitute decision-makers) can make SOME (but not all decisions for you about your health care
• you can appoint someone to make the full range of health care and personal care decisions in a representation agreement

Please note that your spouse and your family do not automatically have rights to speak for you or to make decisions on your behalf about your personal care, or even certain parts of your health care! The only way to guarantee that your wishes are carried out is to appoint someone as your representative under a representation agreement.

How do I make my wishes for health care known?

You can make a document called an “Advance Directive”. There is a certain format that you need to use – just writing a note to your family might not count! If you have strict religious or cultural beliefs about your health care, then you may want to set those out in an Advance Directive. For example, if you do not want blood transfusions, or organ donations or amputations, then that is something you can write out in an Advance Directive. You cannot ask to be euthanized (yet) in BC. The law is changing in this area, and depending on what happens with changes to the Criminal Code of Canada, it may be possible for you to discuss options for end-of life issues with your health care provider at some point in the near future, if you are in a health care situation which you find untenable. Please note! This does NOT mean that your family or your doctor will be able to end your life against your wishes. We only know that changes are coming to this area in the near future, and we do not know WHAT these changes will look like. However, informed consent is a vital part of the law around our health care – no one can simply impose treatment on your behalf.

Estate Administration

What is probate? Is it necessary?

Imagine you walked into a bank and told them that your mother has died, and asked them to close out their account and give it to you, the bank would say “well, how do we know your mother died?” You would give them a copy of their death certificate. Then the bank would ask “well, how do we know that you are supposed to get the money in this account?” You would give them a copy of your mother’s Will. And the bank would then ask “how do we know this is the last Will? What if there is another, later will out there that we should be following instead of this one?” Or what if your mother hadn’t ever made a Will? In order to prove that you are the right person to deal with someone’s estate, and to validate any Will that they have made (or to manage an estate where there is no Will), you must get a certificate from the court called a “Representation Grant” (until recently, the certificate was called a “Grant of Probate”). The process of getting this representation grant is called “probate”. Probate is not always required. Whether probate is necessary is determined based on a wide range of factors, which could include:

• the size of the person’s estate
• the kinds of assets a person owned
• the way in which the person owned those assets
• whether someone is needed to manage parts of the estate such as debts, taxes, or litigation

My spouse died – I’m not sure whether I have to get probate.

Probate is not always required. Any asset you own as a “true joint tenant” should pass to you as the surviving spouse without probate, if you have rights of survivorship in that property. Any asset which has a designated beneficiary on it (like life insurance or an RRSP or RRIF) should pass to the designated beneficiary without probate. Assets which are in the deceased person’s name by themselves, with no designated beneficiaries on them generally require probate, at the discretion of the asset-holder.

Real Property

I want to add my kids on title to avoid probate – can you help me?

Yes, if this is truly what you want. However, it is important for you to understand some very important risks that go with adding an adult child on title to your home with you. If you are considering doing this, please come and meet with us so we can explain some of the real problems that arise when clients do this. If you still want to proceed, we will help you.