FAQ

Welcome to the Frequently Asked Questions (FAQ page). This page is currently, and will forever be, under construction as new questions are posed. Below, we have tried to answer some of the most common questions clients have asked over the years regarding Real Estate, Powers of Attorney, Representation Agreements, Wills and Child Travel Information. If you find that your question is not answered on this page, please contact us.

General

What are your hours of operation during seasonal holidays?
We will be closed from Friday, March 25th through Monday, March 28th, for the Easter long weekend.  If you have any further questions about our holiday hours and services please call us at (250) 756-7720 or for after hours inquiries fill out our contact form and we will reply on the next business day. 
Do you make house calls or see clients in the hospital?
Yes, we make both house and hospital calls, however these generally need to be booked a few days in advance and there is a $150.00 fee for each visit.
Why use a Notary Public?
Experience. Because we concentrate on real estate and estate planning our entire operation is geared to successful document preparation. We do not practice in contentious matters, so we can devote our time and energy to our clients’ deadlines and priorities. All Notaries in BC are covered for errors and omissions. Tiah M. Workman, Notary Public, also carries an additional professional errors and omissions policy.
Do I need an appointment?
If you need a simple document notarized, we have drop-in notarization times: Monday & Friday from 10:00 – 11:00 a.m. and on Tuesday & Thursday from 3:00 – 4:00 p.m. If you have more that a simple document to be notarized or for any other office visit, please call or e-mail for an appointment so we can ensure that the notary is available for you.
What is the main difference between a Notary Public and a lawyer?
The main difference between a Notary Public and a lawyer is that Notaries Public do not handle contentious matters. Notaries can and are required to give legal advice in the areas of law in which they practice. Under the Legal Profession Act, lawyers are entitled to use the style and title of “Notary Public”, but they are not commissioned Notaries Public nor are they members of the Society of Notaries Public of British Columbia.
What do you charge for your services?
That is dependent upon what you need. Please call or e-mail our office for a quote.

Real Estate

What is the difference between Joint Tenants and Tenants in Common in property ownership?
As a Tenant in Common, you own your interest in the property outright: on your death, your interest in the property is yours to leave to a beneficiary. This is how you may own property with a business partner.

As a Joint Tenant, there is a right of survivorship: on your death, your interest in the property immediately reverts to the surviving Joint Tenant(s). This is generally how we would register property in the case of a husband and wife.

I am looking at buying a new home and am considered a first time home owner in B.C. Is there any assistance available? Would I have to disclose that I owned a home 20 years ago in the U.S.?
There are various federal programs available through your lender or broker that may provide some assistance with your purchase. One matter to consider is that Property Transfer Tax applies to all purchases of real property in B.C., unless there is a reason that the transaction is exempt or partially exempt. To qualify for an exemption as a first time home buyer one of the ten main conditions that must be met is that you “must not have previously owned an interest in a principal residence anywhere”. If you did not disclose that you previously owned a home regardless of the location, or made any false declaration, you could be assessed a penalty equal to twice the tax otherwise payable.
Is the title of a real estate property automatically searched by the realtor or is the onus on the buyer to ensure that this is done?
Although this would be a question better asked of the realtor, it is my understanding that although many realtors search title when listing a property and prudent realtors search title on behalf of a buyer prior to having them enter into a binding contract, it is not mandatory for a realtor to search title even though they could be negligent if they do not. As such, the onus is on the buyer to ensure that this is done before they sign!
What are the steps involved in buying a house?

  • Step 1 – Retain the services of a lawyer or notary. You should retain your lawyer or notary as soon as you have an accepted Contract of Purchase and Sale and have removed all subjects. Ask your other professional advisors for a referral.
  • Step 2 – Your lawyer or notary will need to gather information from you including how you wish to hold title to the property if you are buying with your spouse or partner. Don’t hesitate to contact your lawyer or notary if you have not heard from them at least 3 – 4 weeks before the closing.
  • Step 3 – Your lawyer or notary conducts a title search and obtains tax information and any additional information necessary to prepare Statement of Adjustments. If you are taking a more your lawyer or notary will need to obtain and insurance binder with “loss payable” to your lender.
  • Step 4 – Your lawyer or notary prepares closing documents including title transfer, mortgage, property transfer tax forms and Statement of Adjustments. Your lawyer or notary will forward the seller’s closing documents to the seller’s lawyer or notary for execution.
  • Step 5 – 1 – 3 days before closing is when you usually meet with your lawyer or notary to sign documents and deliver the balance of the down payment or equity. the balance of funds will need to be paid to your lawyer or notary by certified cheque, bank draft or inter-bank transfer. If your funds are invested ensure that they will be available for deposit in advance of closing.
  • Step 6 – Your lawyer or notary will register the transfer and mortgage documents, arrange for the seller’s lawyer or notary to pick up funds and notify you that the purchase has completed.
  • Step 7 – Normally you receive the house keys directly from your realtor on the Possession Date as set out in the Contract of Purchase and Sale.
  • Step 8 – Move in and enjoy your new home!

Power of Attorney

My father is 62 years old and has been diagnosed with Alzheimer’s. He will not sign a Power of Attorney. We are concerned about him as well as his financial affairs. What can we do to ensure that he is not taken advantage of?
If your father has already been diagnosed with Alzheimer’s, it is unlikely that he would be considered to have sufficient capacity to give instructions for a Power of Attorney anyway. He may, however, have sufficient capacity to appoint a Representative through a Representation Agreement as the “test” for capacity is considerably different for a Representation Agreement. If he is unwilling to enter into a Representation Agreement and his mental capacity has definitely declined, you may wish to obtain the advice of a solicitor with a view to obtaining Committeeship of your father’s affairs.
Can you explain to me what the Power of Attorney is and how it works?
A “Power of Attorney” can be defined as an instrument in writing by which one person empowers another to represent him/her, or to act in his/her stead, for certain purposes. A party who has been appointed as an attorney under a Power of Attorney without restrictions has the ability to look after any matters of a “paper” nature for the party who has appointed him/her (the “donor”), such as paying bills, dealing with Revenue Canada or selling property on behalf of the donor. The bank, Revenue Canada or whomever you may be dealing with may require a certified copy of the Power of Attorney for their records as proof of your appointment. The powers granted to an attorney may be restricted to certain activities (such as dealing with the sale of a particular piece of property) and may be revoked by the donor at any time. An attorney may not use a Power of Attorney to transfer an asset of the donor to him/herself. An enduring Power of Attorney is a Power of Attorney document that can continue to be used even after the donor is no longer capable of providing instructions to the attorney. A Power of Attorney does not extend to dealing with matters of “self”, for example the authority to determine where the donor will live, the ability to make medical decisions on behalf of the donor, etc., although the new Representation Agreements may do so.
(see also “Power of Attorney” published by the People’s Law School)
Will my Power of Attorney still be in effect after I die?
Absolutely not. The Power of Attorney is a document used only while you are living.

Representation Agreements

What is a representation agreement?
Representation Agreements are quite simply a way to ensure that if you need help managing your affairs, you will get it from people you choose and trust. The Representation Agreement Act, which came into effect February 28, 2000, allows you to appoint someone you trust to make financial, legal, health or personal care decisions on your behalf: you may appoint one representative to look after only financial and legal matters and a separate representative to look after only health and personal care decisions: you may appoint alternate representatives: you may appoint a monitor to make sure your representatives are doing their jobs. As you can see, representation agreements can be very flexible documents.
I have been told that only lawyers can prepare Representation Agreements. Is this true?
There appears to be a great misconception (from various seminars and discussion groups) that only lawyers may prepare Representation Agreements. There are 2 different types of Representation Agreements: “Section 7” Agreements (referred to as standard agreements) and “Section 9” Agreements (referred to as enhanced agreements). Notaries Public may prepare both Section 7 and Section 9 Agreements.

Wills

In our Wills, my husband and I appointed each other as Executors. Since my husband has died, am I obligated as it states in the Will, to now appoint my solicitor? Can I revoke it and how do I do it?
You are under absolutely no obligation to appoint your solicitor. You may revoke this appointment by either making a new Will or by making a Codicil to your existing Will appointing a new Executor. A Codicil is an addendum to a Will that is generally made when you are only making one or two changes to the existing Will and is read together with the existing Will. A Codicil is also less expensive than redoing the entire Will.
I am a widow with 2 grown children. I had a Will made up when they were young leaving everything to them. Should I change it?
This depends entirely on how your Will was originally drawn. A “standard” Will may include clauses that take into consideration future circumstances. However, if there have been births or deaths in the family, your Will may be deficient. Should you marry, your current Will, or parts thereof, may no longer be valid. You should have your Will reviewed by a Notary Public or lawyer to determine what changes, if any, may be required.
Must a Will be notarized to be valid?
Absolutely not. The main requirements for the standard execution of a Will are that it must be witnessed by two witnesses over the age of 19 years (who must not benefit, directly or indirectly, in any way by the Will) and the witnesses must both be present at the same time as the testator and at the same time as each other so that all three observe each other signing and witnessing the Will at its end. There is no requirement for a Will to be witnessed or notarized by a Notary Public or lawyer in order to be valid. However, there are other aspects of the Wills Act which must be considered in order to ensure that a Will is valid. If you have any concerns regarding the validity of your Will, do not hesitate to contact our office for a personal consultation.
What is a “living Will”? Why are they important?
A living Will is not a legally binding document in British Columbia, but is an expression of an individual’s wishes. If a family knows, by way of a living Will or otherwise, that an individual does not wish to be kept alive in a situation where they would otherwise die if not for the use of artificial means or “heroic measures” being taken, it is far easier for them knowing that the individual has made that decision and they are not having to make it for them. Representation Agreements can specifically address this particular issue as can Advance Directives. Please contact my office for more information.
What happens if I die without a Will?

If you die without a Will, holding assets in British Columbia, you die “intestate”, and your assets will be distributed according to the Wills, Estates and Succession Act (the “Act”).  The Act sets out the scheme of distribution as follows:

 

The first $300,000.00 goes to the spouse, if there is one and if they have children in common and $150,000 if they do not. The balance of the money is split equally between the spouse and the children. If the children are minors, then the money is held by the Public Guardian and Trustee until the children reach the age of nineteen (19) when it is paid to them. There is no opportunity to set up a trust, or have the spouse or parent of the child administer the money. If there are no children, or spouse, then your estate is generally distributed to family members in the following priority:

(a) your parents;
(b) your brothers and sisters;
(c) your nieces and nephews;

If there are no nieces and nephews, then the estate will go to the government.  Dying without a Will does not mean your estate goes to the government, but it does mean you do not choose who your beneficiaries are. It can also mean delays, extra expenses, and considerable inconvenience and even hardship for your survivors.

Child Travel Information

What do I need to know about my child traveling alone or without me?
The Canadian Department of Foreign Affairs has the following information on their website concerning what documents should be carried by a child traveling alone or by a parent or guardian traveling with a child.

Foreign officials and transportation companies are vigilant concerning documentation for children crossing international borders. Make sure you carry the proper identification for yourself and any children travelling with you, including any documents that might be required by the authorities of the country you intend to visit, and by Canadian authorities on your return to Canada with the child. Generally, persons younger than 18 years of age could be considered children. Proper identification includes, but is not limited to, a valid passport for the child when traveling outside Canada. In addition, we recommend that a consent document or letter be carried to prove that the child has the permission of the absent lawful parent(s) or guardian to travel. This document should be specific to each trip and should include contact information for the parent(s) or guardian. A sample is provided for parents to use as a model to draft their own consent letter.

This consent document could be required even if the separation or divorce documents award custody of the child to the accompanying parent, but the non-custodial parent has legal access or visiting rights to the child. In addition to the certified consent document from the absent parent, a copy of any separation, divorce or custody decree might be requested.

A child of divorced or separated parents who is traveling without either parent could use either one consent document signed by both parents or two separate documents.

If a legal guardian is accompanying the child, then a copy of the court order granting guardianship might also be requested.

If only one parent’s name appears on the birth certificate, and the child is traveling with the other parent, then we also recommend that a certified copy of the child’s birth certificate be carried.

If one parent has died, a certified copy of the death certificate could also be carried.
Remember that customs officers, as well as other authorities, inside and outside Canada are looking for missing children and may ask questions. Make sure you carry the proper identification for yourself and any children traveling with you. In addition to passports, proper identification could include, but is not limited to, birth certificates, citizenship cards, landed immigrant records and certificates of Indian status.

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