BarTalk October 2000
Volume 12, Number 5

Bar calls on government to protect the public

After extensive submissions and consultation with CBABC representatives from the three Wills and Trusts Sections (RAA Sub-committee), the Executive Committee Task Force on Legal Issues of the Elderly, and the CBABC Notaries Committee, the message from the Bar to government was clear: the Representation Agreement Act requires amendments; an enduring power of attorney should remain a legal option for British Columbians; and, to protect the rights of those who choose them, no one should enter into a Section 9 agreement or a Section 7 agreement without proper legal advice from a lawyer.

On July 24, 2000, Dulcie McCallum completed her review of whether or not persons other than lawyers should be allowed to be consulted on Section 9 agreements. Her recommendation, accepted by the government without any further consultation with the CBABC or Law Society, is that the class of persons who can be consulted be expanded to include notaries. Attorney General Andrew Petter announced on September 25 that he would be introducing legislative changes to the Notaries Act to allow notaries who pass an as-yet-unspecified course or a competency examination to be consulted in the creation of a Section 9 representation agreement.

“The lawyers of BC have been very sympathetic to the fact that people want a simple and useful tool to allow them to appoint a representative to manage their affairs when they are incapable of doing so,” said President Margaret Ostrowski, QC. “But we are deeply concerned about the protection of the public interest – and more so every day as lawyers throughout BC help people work through the complexities of these new agreements.”

“Ms. McCallum has expressed her concern over a “monopoly” held by lawyers, and yet later in her report admits that there is no real difference between notaries and lawyers in terms of their cost or accessibility,” said Jim Herperger, Chair of the Notaries Committee. “Section 9 Representation Agreements are hardly a lucrative or large part of any lawyer’s practice, but it is a serious legal instrument that we believe requires a lawyer’s education, CLE training, experience, insurance and professional restrictions.”

“We are very concerned that this is a political decision. Throughout this consultation process, we heard a lot about “consumer empowerment” and not enough about “consumer protection,” said Ms. Ostrowski.

Any amendment to the Notaries Act will require a sitting of the Legislature, so the CBABC Government Relations Committee will be working over the coming months to ensure that all MLAs are aware of our position on this matter prior to the Legislature being reconvened. Individual lawyers are encouraged to write to their own MLA. Visit the Public Trustee and Guardian Web site (www.trustee.bc.ca) for a copy of the McCallum Report and news release regarding the government’s response.

This article was published in the October 2000 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.