REGISTERING ESTATE PLANNING DOCUMENTS
So, you have finally got your estate planning done and have a Will, Power(s) of Attorney for financial matters, and a Health Care representation agreement. When you die, or if you are mentally incapacitated, somebody else can handle your affairs on an ongoing basis according to the plans that you have set forth. The problem now is who knows about these documents?
In the past, a Will was kept secret. The reasoning was that it was nobody else's business but your own. This could still be the case, but the general consensus among legal practitioners is that estate matters should be discussed among family members, if possible. Certainly a potential executor or attorney should know of his or her appointment. If there are a number of children and all children are treated equally, and you are unlikely to change your Will, there is no reason why your children should not be given a copy of the Will and advised of where you have stored the Will and other documents. Certainly the executor should be given a copy of the Will and should always be advised where the original of the Will is stored. The executor of your Will, your attorneys under your Power(s) of Attorney, and your representative under your Health Care Representation Agreement will in most cases require the original of the document to invoke them.
Your family doctor should also know who your health care representative is and might wish to have a copy of the document.
Registering a Will
In British Columbia there is a Wills registry operated through the Vital Statistics branch of the provincial government. The registration of a Will or a codicil is not mandatory, but people who make Wills may register the fact that they have a Will and where it is stored. The registry can also be advised of changes to the location of the Will and any amendments or codicils to the Will.
The current registration fee is $18.50 per Will for this service. It is probably a prudent expenditure in all cases to register the Will. Registration is limited to the fact that there is a Will in existence and its location; it does not provide any further details of the Will. The government only knows that you have a Will and not what is included in the Will. A lawyer or notary public may search these records while you are alive. Upon your death anyone with a death certificate may do a search. On an application for probate it is necessary to search the Wills Registry to determine that there are no subsequent Wills to the Will being probated.
Registration or filing a Wills notice is absolutely necessary if nobody is aware that you have a Will. If the Will is unregistered, care should be taken that a number of people know you have a Will and where it is stored. As time passes, the possibilities increase that friends and family with knowledge of it could die, move away, or become mentally incapable.
Registering Powers of Attorney or Representation Agreements
There is no government registry for Powers of Attorney or Representation Agreements. The original Representation Agreement Act contained provisions allowing for mandatory registration of representation agreements. These requirements were never proclaimed and it appears unlikely that a government-mandated registry system will be put in place.
A society called the "Representation Agreement Resource Centre" (Tel: 604-408-7414) has put in place a registry system called the Nidus eRegistry. This registry costs a one-time fee of $25.00 for setup and initial registration, and $10.00 for each additional registration for the same individual. Registrants have full access to the record by using the Nidus Registry number and their personal password. Hospitals can access Nidus in an emergency. Registrants can also authorize access by other third parties such as banks and government services. The public cannot access records in the registry.
Nidus currently offers two options for registration. One is an option to register notices only. This is similar to the Wills registry. The second option is a document registry similar to the BC Land Titles Registry: the document itself is available online along with a notice.
The Nidus eRegistry allows a hospital to immediately find out that you have named a representative to make your health care decisions for you. It also prevents hospital staff or community-based mental health services issuing a certificate of incapability because they were not aware of the existence of an enduring power of attorney or representation agreement. Such a certificate could allow the Public Guardian and Trustee's Office to take over the financial management of your affairs.
So remember, in order for your estate plan to be effective you must ensure that your documents are registered and / or key people know of their existence and storage location.
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