CBABC protects access to legal planning tool

Since the enactment of the new guardianship legislation, the CBABC has been actively involved in assisting the government and the Public Guardian and Trustee in addressing issues of concern related to Representation Agreements and to the previous government’s announcement that it planned to eliminate enduring powers of attorney as an estate planning tool in BC.

On March 12, 2002, the Attorney General announced that enduring powers of attorney would be retained as the main tool for advance planning in financial and property matters, that Section 9 Representation Agreements would be limited to personal and health care matters, and that Section 7 Agreements would be available for limited financial, personal and health care matters. Legislative amendments will be enacted following a public consultation.

The CBABC has been working hard to ensure that British Columbians have access to viable, effective legal planning tools that serve to protect their interests. In the course of that effort, the CBABC has twice been successful in persuading the Attorney General to delay the proposed elimination of enduring powers of attorney so that a comprehensive review of Representation Agreements could be conducted. A consultant, Professor Albert McClean, QC, was hired by the government to review in detail issues of concern related to powers of attorney and representation agreements. Professor McClean’s final report reflects the principal recommendations for action submitted by the CBABC (see www.ag.gov.bc.ca/public/McClean-Report.pdf).

It has been the consistent position of the CBABC that a Representation Agreement as originally contemplated is an inadequate, cumbersome and relatively costly legal planning tool in the context of property management, and is not an effective replacement for an enduring power of attorney. In addition, the CBABC has expressed concern that complex legal planning requires professional legal counsel, and should not be left to paraprofessionals.

The Government Relations Committee and CBABC Presidents Carman Overholt (2001/02) and Margaret Ostrowski, QC (2000/01) helped ensure that this issue was in the forefront of all CBABC interactions with government officials. The Solicitors’ Issue Committee, led by Margaret Sasges, and the Notaries Committee, led by Jim Herperger and Alice Finall, were also involved.

However, there is no question that the CBABC’s ability to achieve success on this issue was the direct result of the extraordinary pro bono efforts of a special committee of the CBABC Wills and Trusts Sections, led by Chair Carmen Thériault of Bull, Housser & Tupper and supported by CBABC Legislation and Law Reform Officer Stuart Rennie. The Representation Agreement Act Review Committee has persevered to ensure choice and access to legal planning tools in BC, and we commend them all: William Bice, QC, Peter Bogardus, QC, Jim Herperger, Mark Horne, Fiona Hunter, Tom Kendall, Andrew MacKay, Gordon MacRae, Hugh McLellan, Ruth Magnusson, Margaret Mason, Elaine Reynolds, Margaret Sasges, Carmen Thériault and Linda Yardley.

This article was published in the April 2002 issue of BarTalk. © 2002 The Canadian Bar Association. All rights reserved.