Frequently Asked Questions
1. What do I bring to my appointment?
All services provided to all individual’s require presentation of a single piece of government issued photo identification. Types of acceptable identification can be found on the Acceptable Identification page where we link all forms of acceptable identification. Expired ID is not accepted.
Further, all real estate transactions will also require presentation of all purchasers Social Insurance Card, or T4 Statement of Remuneration Paid (slip) or Canada Revenue Agency Notice of Assessment. Click here for additional information regarding this requirement by “The Land Title and Survey Authority of British Columbia”.
Additionally, any real estate mortgage or refinancing transactions will have lender specific identification requirements that may require an additional piece of secondary identification and will depend on the lender you are obtaining financing from. You will be informed prior to meeting with the notary as to what the requirement is for your circumstances.
Services provided to a corporation (or other entity) transactions will require confirmation of the existence of the corporation (or other entity), as well as it’s name and address. This will be done through review of a paper or a publicly available electronic source of the corporation’s certificate of corporate status, annual filing record, published annual report signed by an independent auditor, or a letter or a notice of assessment for the corporation from a municipal, provincial, territorial or federal government (or a partnership agreement, articles of association or any other similar record that confirms an entity’s existence).
2. What is the difference between a lawyer and a British Columbia notary public?
The two main differences between a British Columbia notary public and a lawyer are their education and areas of practice.
With regards to education, both are required to obtain a bachelor’s before applying to the respective training programs. Law students then go on to take three years of law school, do 10 months articling and must pass an open book Bar exam with an overall minimum grade of 60%. Notary students go on to obtain a Master’s in Applied Legal Studies, through Simon Fraser University, with a focus on Law of Contracts, Real Property, Wills and Personal Planning, and legal practice management. Notary students also take additional training from the Society of Notaries Public on Will, Power of Attorney and Representation Agreement drafting, Notarial Procedures, and Executorship. Notaries must also write and pass six closed book Statutory exams with a minimum grade of 55% and an overall average of 65% or greater.
Both notaries and lawyers, are required to give legal advice in the areas of law in which they practice.
Lawyer’s are permitted to practice in all areas of law, including areas of contention which involve going before a judge. Notary’s are limited to practice in the non contentious areas of Real Estate, Wills and Personal Planning, and Notarizations, as defined in section 18 of the Notaries Act. Further, notaries are governed through membership in the Society of Notary’s Public of British Columbia, while lawyers are governed through membership in the Law Society of British Columbia.
3. What is our process to prepare a Will, Power of Attorney, Representation Agreement and/or Health Directive?
To have any of these important legal documents prepared by Michelle Hay requires that you contact our office at (250) 638-8989, or by email at Michelle@TerraceNotary.ca
4. Why does Michelle recommend getting a Will?
A will is a vital document, especially if you own property or have any minor children. A will ensures you choose the person, the executor, who will deal with your estate upon your passing. The executor will then have the legal power to deal with your land and property and disburse it according to the instructions in your will. Without a will your loved ones may have to hire a lawyer to go before the courts to establish who will act as the administer (the equivalent of an executor) of your estate and your estate is distributed according to the legal protocol established in the Wills, Estates, and Succession Act. This adds unnecessary uncertainty, delay, stress and expense to a process occurring when your loved ones are already dealing with the grief of your passing.
Most importantly, a will allows you to name the guardian(s) for any minor children you have. Without a will your loved ones may have to hire a lawyer and go before the courts to establish who the best guardian for any minor children would be. Again, this adds unnecessary uncertainty, delay, stress and expense to an already difficult situation.
There are many additional legal factors that must be considered when drafting a valid will and this is something Michelle is well versed in and can help you successfully navigate.
5. Why does Michelle recommend that her clients get a Power of Attorney and Representation Agreement drawn up when they prepare their Will?
Michelle also strongly recommends getting a power of attorney and representation agreement drafted at the same time as your will, if you have not already done so. A power of attorney is a vital legal document that allows you to name an individual(s) to act on your behalf to deal with your legal and financial needs, should you be incapable or simply unable to act on your own. This could be because you are out of the country, or due to serious illness.
A representation agreement allows you to name an individual(s) to act on your behalf regarding your healthcare decisions, should you be incapable of making them for yourself due to serious illness.
These documents both require a great deal of trust and communication between yourself and the individual(s) you select. Without these documents in place, should the worst occur, and you are too ill to look after your financial and legal needs, or your healthcare decisions, your family may find themselves having to hire a lawyer to go before the courts to establish who will act on your behalf. This adds unnecessary uncertainty, delay, stress and extra expense to what would be a difficult situation for your loved ones.
6. What is a Power of Attorney?
- A Power of Attorney (POA) is a legal document where the Adult (donor) provides a named Attorney the power to do anything financially or legally that the Adult (donor) can do. There are some exceptions; for example, the Attorney cannot transfer the Adult (donor)’s property into the Attorney’s personal name, unless the document specifically provides for this, nor can the Attorney make/change the Adult (donor)’s Will.
- A POA normally becomes invalid when the Adult (donor) becomes mentally incapable, unless the document specifically provides that the Attorney’s powers continue. This is known as an Enduring Power of Attorney.
- A POA can be for a specific purpose and/or time, or it can be general. A Specific Enduring POA can be useful if the Adult (donor) is traveling out of the country and has specific financial or legal matters that need attending to, for a specific period of time. A General Enduring POA is appropriate for an Adult (donor) who wants an Attorney ready to act at any time it may be required, or should the Adult (donor) become incapable.
- The Attorney must act in the best interests of the Adult (donor) and use any instructions or known beliefs or wishes as a guide, as far as practicable.
- The Attorney cannot use the POA to access the Adult (donor)’s safety deposit box unless specific authorization is given by the Adult (donor), either in the document or to the bank where the safety deposit box is located. For this reason, it is not advisable to keep the POA in a safety deposit box.
- You must be aware that should the Attorney mismanage your assets, they could significantly diminish in value. It is important to choose a trustworthy, honest, capable individual as your Attorney.
- Misuse of a POA is a criminal offense. If you are concerned that an Attorney is abusing their power you should immediately revoke the POA and seek legal advice. If you are incapable and cannot revoke your POA, you or someone else, can contact the Public Guardian and Trustee to report the situation.
- You must have their consent to appoint them to act as your Attorney, as an Attorney can refuse to act by providing the Adult (donor) and any other Attorney(s) with a Notice of Resignation.
- A POA is no longer valid if the Attorney, dies, becomes bankrupt or becomes insolvent or when the Adult (donor) dies.
- A POA is revocable at anytime, as long as you are mentally capable. The law presumes you are capable, until it is shown that you are not, ie a letter from a physician. You must provide your Attorney(s) with a Notice of Revocation which will immediately revoke the POA either upon receipt or on a date stated in the Notice.
Please contact Michelle for more information and to receive a quote for services regarding this important document.