Estate Planning in BC: POAs, Executors, Probate, and Why Title Decisions Matter

What happens when a parent names you their Power of Attorney or an Executor? What should you do first (and what should you never do)? In this episode of FH&P Lawyers’ Law Talk podcast, host Clay Williams is joined by estate and real estate lawyer Nancy Ling for a candid, practical conversation about navigating Powers of Attorney and estate responsibilities.

From selling property under a POA to probating a will after a loved one passes away, this episode offers real-world advice for anyone managing another person’s finances or assets. Clay and Nancy unpack common misconceptions, explain legal safeguards, and share why putting your child on title isn’t the golden solution it seems.

Read below to get clear answers on some of the most misunderstood parts of estate planning—and learn how FH&P Lawyers can help you make the right move at the right time.

Clay: Welcome to another edition of Law Talk. I'm Clay Williams. I'm a partner at FH&P Lawyers, and with me today is my partner, Nancy Ling. Welcome Nancy!

So our topic today is "Dealing with POAs and Estates." Riveting. Okay, well, let's talk about POAs.

What Is a Power of Attorney (POA)?

Nancy: That's power of attorney. Basically, it's when you want to prepare in case something happens, you lose your mental capacity, and you appoint an agent who can help you with your financial affairs. So it's a power of attorney, and that's the name of the document, but the attorney is also the name of the agent that you get to help you with your financial affairs.

It's planning for incapacity, and one of the things that your agent can help you with is selling real estate. If you need to downsize, you're getting older, maybe you want to move into a senior's community or assisted living. You don't want to deal with the realtors, the bank, all that stuff. You can use your power of attorney or your agent to help you sell real estate.

So there's a couple of steps and things about powers of attorney that people need to know if they're going to volunteer for the role. They want to help out their elderly parents or aunts and uncles, or neighbours. And also stuff you need to know if you're going to use it for land title transactions.

Clay: Well, yeah, and I guess when I hear about it, it's usually a daughter or son helping their parents out and transitioning into, like you say, an assisted living facility or something like that. But I guess it could be anybody.

Nancy: Yeah, I mean, some people didn't have children, and maybe they've got a really close relationship with a niece or nephew, or maybe even a neighbour. You can appoint anybody who's over the age of 19 and has all their wits about them to be your power of attorney. It should really just be someone that you trust, because you are giving them all sorts of power and control over your financial affairs. They can handle your banking, your taxes, and your investments. They could sell your real estate. So you want to pick someone that you trust.

Clay: And sometimes you want them to sell your real estate.

Nancy: Exactly.

Who Can You Appoint as Your Power of Attorney?

Clay: Now, when I think of a power of attorney, I think of it as something that might be operative when somebody's lost capacity—before they die—but has lost capacity. But that's not necessarily the case.

Nancy: Doesn't have to be. We all should have it put in place because you never know what could happen. You could get into a serious car accident and have a traumatic brain injury. You could be in your twenties, and that could happen. But a lot of people who traditionally think about it they're planning for old age, and maybe they end up with dementia or Alzheimer's or something like that. But you can set it up.

I've got one right now, and if I decide to hop on a yacht and travel around the world, and I don't want to deal with filing my tax return, I could have my power of attorney do that for me, or watch my investments. Or if I've got a house sale coming up and for some reason work takes me out of the country, and it's not going to be easy to deal with all that, I can ask my power of attorney to deal with all the paperwork for me.

Clay: So you don't have to be—can you, like, is there—okay, on a house sale, I mean, you're really just dealing with a purchaser and the land title registry. And you don't need any special requirements to act as an attorney for somebody in those situations?

Using a Power of Attorney to Sell Property

Nancy: Yeah. So you will have to jump through some hoops. What you'll start with, if you're going to be selling a house, you have to hire a realtor first. The realtor is going to want you to sign a listing agreement, and they're going to want proof that you have the authority to sell this house that you don't own. So they're going to want to see the power of attorney.

You're going to need to track down the original document, because usually what you're looking at or what's stored at your parents' or a friend's house is a photocopy. So you'll want to know where the original is. It's probably kept at the lawyer’s or the notary’s office, and they'll be able to make you a certified copy to prove that the original is somewhere safe and you have a true copy of it.

Then the realtor will know that they can take instructions from you. You can set the listing price, you have all that authority. And then the next person you're probably going to deal with, once you've got an agreed-upon binding contract of purchase and sale, is going to be the lawyer or notary that's going to help you do up the legal transfer documents. That lawyer or notary is going to ask again for the original, because if you're signing a transfer of a deed of land, the land title office needs a copy of the power of attorney so your lawyer can register it.

We do it all electronically these days, which is nice and easy. You're not mailing it to Kamloops. But the lawyer is going to need the original in their possession when they submit an electronic copy online to the land title office. And then once that's registered with the land title office, you, as the power of attorney, can sign anything that the owner could sign.

Clay: Are there any differences in acting as an attorney for somebody with capacity as opposed to somebody who's lost capacity?

Responsibilities and Risks of Acting as a POA

Nancy: Not really. You're still an agent, and you have these responsibilities to account for the money. You're handling somebody's money or assets that aren't yours, so you are a fiduciary. You have to keep records. If you're acting for someone with capacity and they ask to see the financial records, you have to be able to produce them. If you're acting for someone without capacity and somebody gets concerned that you're not handling the money well—maybe they think you're stealing or you're pocketing it...

Clay: Yeah. Who is this somebody fudging the numbers?

Nancy: It can be any interested party. That's the thing with elder abuse and financial abuse—we do rely on people to report it when they see it. Quite often, it's the bank. The bank sees that this client has had the same budget for the last 30 years, and all of a sudden, they're taking out a thousand dollars a day. Something is wrong here. So the bank might flag it.

A neighbour or a tenant—if you've got someone who's got a basement tenant and they see the power of attorney showing up with increasingly expensive cars, jewelry—anybody who's concerned about financial abuse can report it to the British Columbia Public Guardian and Trustee. That's the government agency that's responsible for taking care of adults who are under a mental incapacity.

Clay: I see. Okay. Well, so it's a little risky, it sounds like. If you are acting for a parent and you don't get along with your sibling, there might be something going on.

Nancy: Yeah. So, I mean, it is important to choose someone you trust. And it is important to have safeguards in place. If you use a lawyer to help you set this up, we will put into place additional safeguards, like requiring your written consent to release it to anybody other than you, or requiring a doctor’s note if we're going to release it when you're incapacitated. We don't just release it because the power of attorney asks for it.

And yeah, you do have these—hopefully—community members, family members, neighbours, banks, advisors that are going to report something if they see something suspicious. But at the end of the day, it is a Criminal Code offence to use a power of attorney to steal from the person who gave it to you.

How Lawyers Safeguard POA Documents

Clay: And maybe you can explain to our listeners how we act as the gatekeepers for the power of attorney. We set it up as a trust obligation on our part. We're not going to release it into the wild.

Nancy: No, because you could do a power of attorney—there you go, off you go—but yeah, store it somewhere safe. Don’t leave it on the coffee table.

Clay: Because that will be operative right away. So we actually keep it until...

Nancy: Until it's intended to be used. We get our clients to sign it—the donor or the person giving the power—we get them to sign it ahead of time, just in case it ever needs to be used. In a lot of cases, it sits in our vault until the person is dead, because they manage their finances, they're sharp as a tack till their dying day. But it's there as that insurance policy. You want to have it in case you need it, right? So you sign it ahead of time.

And generally speaking, we don't even get the appointed power of attorney to sign it until they actually need to use it. One of the reasons for that is when they sign it, it gets dated, and we know exactly when they started managing the finances. So if money did start going missing last month, but the power of attorney didn't activate it until this month, we know something else happened last month—it wasn't the power of attorney that took that money, or at least not using the power of attorney.

And then the other reason we don't get them to sign it until we want them to use it is if photocopies are floating around and it does land with a realtor or a banker, and they see, "Oh, I have a copy of it, but it's not fully signed," they're going to start asking questions before they take instructions from that person.

Also, the person who's acting as the power of attorney has a responsibility to familiarize themselves with the person's budget so they don't overspend and overextend. So we don't want them to have to dig around and familiarize themselves with the person's budget until they actually need to get involved.

Clay: Okay. So, power of attorney, while a person’s alive, you have a person called an attorney acting on their behalf about anything or anything, I guess?

Nancy: Pretty much anything. The agent can do anything related to financial legal matters, but they can't do what we call testamentary acts. So they can't change that person's will. They also wouldn't be able to change the beneficiary on a life insurance policy, because that's changing the estate plan. That's changing who their beneficiaries are. Same thing with the tax-free savings account. You can't just change the beneficiary to yourself or to somebody different because that's changing what the person wanted to happen after they died.

Clay: Ah, okay. Well, that's good to know. And then they die. And then what happens after that?

What Happens to a POA When Someone Dies?

Nancy: When they die, the power of attorney is kaput—expired—and then all of a sudden you have an estate and you'd be asking yourself: is there a will? Because then you're not dealing with the power of attorney anymore. You'd be dealing with an executor. So it's important to know, if you are using a power of attorney for someone, the second they die, your authority under that document is over.

Clay: Yeah. And you know, I'm of the age right now where a lot of my friends—their parents are passing away, and they are named as executor in a will. And there's usually a piece of property. So, how does that work? Now I’m the executor. How do I deal with my parents’ house or, you know, piece of property?

Nancy: Hopefully, you're going to consult with a lawyer, because we're going to want to order a copy of the title search and see—was anybody else on title with your parent? If it was both your parents—husband and wife—they probably owned the title jointly. And if only one of them has died, then it's pretty simple just to take the deceased person off the title. We file a transmission to the surviving owner.

Clay: If it's joint?

Nancy: If it's joint, yeah. If it's the last parent standing, or if there’s only one person on title, then unfortunately, we’re going to need to get the will probated. And that basically is an old-fashioned way of saying it’s proved valid by the court. When it comes to title transfers, the land title office doesn’t want people forging wills and transferring houses into their names willy-nilly. So there are some hoops you’ve got to jump through with the probate court registry to make sure that the will is actually valid. It’s the most recent will.

Nobody who’s a beneficiary or a family member can make any claim that it’s a forgery, or that the person who made the will did not understand it when they were signing it.

So there are a couple of hoops to jump through to make sure it’s valid. Once that’s all done, you get a grant of probate. You give that to the land title office, and then, similar to the power of attorney, once that’s registered with the land title office, the executor can sign all of the documents that the deceased person could have.

Clay: Does the title actually pass to the executor?

Nancy: Yeah. Once you file that grant of probate, the title will now show—so if it were me, "Nancy Ling, executor of the will of Jane Doe." A realtor or buyer, anyone looking at the title would know that me, as executor, I have the ability to sign the sale documents on behalf of the estate. It’s not my property; I'm holding it as a trustee for the estate and for the heirs and beneficiaries of that estate.

Why Adding a Child to the Title Can Backfire

Clay: Now, one of the questions I get all the time is whether a child should be put on as a joint owner of the family home to avoid probate fees. And I think our listeners would be perhaps surprised at how little the probate fees are here.

Nancy: Yeah.

Clay: What are they?

Nancy: It's not a straight percentage, but it works out to approximately 1.4%, which, all things considered, is a lot cheaper than the capital gains tax rate. Some of the other fees and taxes and filing fees that you can incur if you do that—putting a child on title—it used to be sort of bad advice that's floated around often as the golden solution to avoiding probate.

But there are a lot of reasons why you don’t want to put a child on title.

When I say child, I mean an adult child. You can’t put a minor on a land title. But you're getting up there, maybe you're in your eighties, you want to put your 60-year-old son on title with you.

If you live in the house and your son doesn't, you are the only one who qualifies for that principal residence exemption from the capital gains tax when you eventually sell it.

So if you put your son on title for 50%, you've got to explain—he doesn't really own 50%, he's just on there for convenience. The federal government and Canada Revenue have decided they don't like that.

• That’s a trust, and:

  • Trusts have to disclose information

  • Trusts must do tax filings for a trust return 

That’s also one of the things that will trigger the requirement to file that new underused housing tax return.

So you're:

• Filing a trust return

• Filing an underused housing tax return

• Dealing with the speculation tax exemptions now

• Managing all these headaches

Plus, if that son:

• Goes through a divorce – the spouse is going to make a claim for that house

• Gets into a lawsuit or bankruptcy – those people are going to make a claim for the house

You might be able to argue against it, but you're still going to get dragged through the mud with that son.

Clay: So the takeaway from this is it’s not always the best idea to go on with your parents jointly, as opposed to just allowing it to go through probate, which sometimes is cheaper.

Nancy: Yeah. 1.4%.

Clay: Plus the risk of needing that son's signature anytime you need to refinance, sell, or do anything with the property—you lose control there, too. So it's not a clean, simple, golden solution that some people think it is. Come see Nancy.

Nancy: Yeah.

Clay: Alright. Anything else you wanted to talk about?

Nancy: Obviously, there are lots of complexities that come up with it. Every situation is different. The best advice is just—if you’re in one of these scenarios, call a lawyer. Call us before you make the wrong step.

Clay: And if you call me, I’ll tell you to call Nancy. So, alright, till next time.

Navigating Powers of Attorney and estates can feel daunting, but with the right planning, you can protect your loved ones, avoid legal missteps, and move forward with confidence. Whether you're helping aging parents, managing a property sale, or stepping into the role of executor, FH&P Lawyers is here to guide you through every step with clarity and care. Reach out to our team to get personalized legal advice or learn more about planning tools that bring peace of mind for today and tomorrow.

Disclaimer: This material is provided for informational purposes only and should not be construed as legal advice on any subject matter. Consult with a qualified lawyer for advice on specific legal issues.