What is a Notary? Why do I need one? How can a Public Notary help me?
What's the difference between a Notary and a Laywer?
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.
Lawyers in British Columbia are regulated and governed by the Legal Professions Act and the Law Society of British Columbia. Similarly, Notaries Public in the province are governed by the Notaries Act and their professional society – the Society of Notaries Public of British Columbia. Both the Law Society and the Society of Notaries Public are self-governing bodies tasked with, among other things, protecting the public interest and upholding the reputation of their respective professions.
From a client’s perspective, the primary difference between lawyers and notaries is the legal advice and service each can provide.
Lawyers are able to assist clients with all legal matters. This includes contracts, real estate, corporate, commercial, family law, criminal law, estate planning and estate administration. Of course, some lawyers choose to only practice in certain areas of law – usually solicitor (transactional) work or litigation (advocacy/court) work.
Notaries are able to assist clients with certain types of transactional matters. Notaries are permitted to provide legal services related to real estate transactions, wills, affidavits, the administration of oaths, the signing of legal documents and various other non-adversarial legal matters. Notaries are not permitted to represent clients in court. Accordingly, notaries are not permitted to assist clients with criminal matters, family matters, estate administration (probate) or other litigious legal matters.
When deciding whether to retain a lawyer or notary for assistance with your legal needs, it is important to consider the scope of your legal needs. Specifically, we recommend that you assess whether your legal needs currently fit within the realm of the legal services provided by notaries and the potential monetary and practical implications if your legal needs shift/change and extend beyond the scope of legal services authorized to be provided by a notary.
The Personal Information Protection Act (PIPA) regulates the way organizations in British Columbia use, keep, secure, disclose and collect personal information. “Personal Information” means all information about an identifiable individual and includes paper and electronic information. Okanagan Notaries recognizes the importance of privacy and recognizes the sensitivity of personal information received in the course of practice.
We recognize our professional obligation to maintain the confidentiality of our clients’ information and recognize our obligations concerning the personal information of all individuals that we collect, use or disclose in our practice. This policy has been developed with those obligations in mind.
Why do I need personal information?
To give legal and notarial advice to clients, I need access to all relevant facts and information relating to the transaction. This information will necessarily include personal information about my clients and about individuals other than my clients.
What do I do with the information?
When we can, we collect personal information directly from the person to whom the information pertains. If necessary, we will collect personal information from other sources.
By retaining Okanagan Notaries for advice or representation, our clients consent to our collection, use, or disclosure of their personal information in order to properly advise and represent them.
It is our policy to collect personal information about individuals other than clients in accordance with provisions of PIPA. The Act provides that an individual has consented to the collection, use or disclosure of personal information about that individual if, at the time of consent is deemed given, the purpose is considered obvious to a reasonable person. In those circumstances, we will collect, use or disclose personal information without obtaining written or verbal consent to do so.
The Act also permits us to collect, use or disclose personal information about an individual in some circumstances without the individual’s consent. These include (but are not limited to) circumstances in which: (rest is good). Bottom line: When we collect, use or disclose personal information, we will make reasonable efforts to ensure that it is accurate and complete.
How will I keep personal information secure?
We recognize our professional and legal obligation to protect the confidential information of my clients and other individuals we have collected from within our practice. We have, therefore, made arrangements to secure against the unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction of personal information.
Under what circumstances will I release personal information?
The Act permits individuals to submit written requests to us to provide them with:
- Their personal information in our custody or control
- Information about how we use their personal information under our control
- The names of the individuals and organizations to whom we have disclosed their personal information under our control
We will respond to request in the time allowed by the Act and as authorized by you (pursuant) to various documents in our file. We will make reasonable efforts to assist applicants and to respond as accurately and completely as reasonably possible. All requests may be subject to any fees and disbursements the law permits us to charge.
An individual does not have an absolute ability to access his or her personal information under our control. The Act provides that I must not disclose personal information when:
- Disclosure could reasonably be expected to threaten the safety or physical or mental health of someone else
- Disclosure can reasonably be expected to cause the person who made the request immediate or grave harm as to their safety or physical or mental health
- Disclosure would reveal personal information about someone else
- Disclosure would reveal the identity of an individual who has provided personal information about someone else and the person providing the personal information does not consent to disclosure of his or her identity
The Act further provides that we are not required to disclose personal information when:
- The personal information is protected to the extent allowed by notary/client privilege
- Disclosure of the personal information would reveal confidential commercial information, that if disclosed, could in the opinion of a reasonable person, harm the competitive position of an organization
- The personal information was collected or created by a mediator or arbitrator in the conduct of a mediation or arbitration for which he or she was appointed to act:
- Under a collective agreement.
- Under an enactment; or
- By a court.
Personal Planning Documents
Wills – How to prepare for a will appointment
To prepare for making a will you should make a list of the following:
- Your legal name (any aliases) and address.
- Full name and address of whom you wish to appoint as your executor.
- Full name and address of whom you wish to appoint as an alternate executor (should your first choice be unable to act).
- A brief description of your assets.
- A detailed description of any items or specific sums of money you wish to leave to beneficiaries.
- How you want to distribute the balance of your estate (often referred to as the residue of your estate) after specific items or money have been given, if any.
- Full names and addresses of all beneficiaries.
- If a beneficiary should predecease you, who should receive his or her share?
- If you have children under 19 years of age, the name and address of the person(s) you wish to designate as guardian.
- Information on any burial or cremation arrangements you may have.
What happens if I die without a will?
Your estate will be distributed according to the current intestate laws set out by the government. An administrator may be appointed by the Court and guardians may be assigned for minor children.
There may also be tax implications that were not accounted for in your estate plan.
Currently, if you are married and have children, your estate will be divided between your spouse and children. If you do not have a spouse, then everything will be divided among your children. If you do not have a spouse or children then your estate will be divided equally between your parents. If you do not have a spouse, children, or parents then everything goes to your siblings. If your do not have a spouse, children, parents, or siblings then everything goes to your nieces and nephews.
What is a will? And why do I need one?
What is a Will?
A Will is a legal document that governs how your estate is distributed following your death. A Will is valid if it is made by a person of sound mind who is 16 years of age or older and it may deal with the disposing of property on death, the guardianship of minor children, the management of assets, and the deceased’s wishes for their funeral arrangements.
Why do I need a Will?
By making a Will, you can specify who administers your estate, who your beneficiaries are, and who will be the guardians of your minor children following your death. Without your direction, the law will dictate the distribution of your assets, the administrator of your estate, and who the Court thinks is the best guardian for your minor children.
Choosing an Executor
Your executor is responsible for administering your estate, arranging your funeral, proving the will, liquidating the estate, paying debts, distributing assets as the will directs and many other duties. Choosing an executor is a very important decision. It is important that your executor be able to keep proper records and be available for an extended period of time to administer your estate. You should be sure and discuss this responsibility with your potential executor as it is a very time consuming job.
An executor is entitled to be paid up to 5% of the gross value of the estate depending on the complexity of the estate, but you can stipulate in advance what the fee should be.
An independent executor can often resolve conflicts among siblings or disappointed relatives. Some people choose an independent person such as a notary, accountant or a trust company if they haven’t any family close by or if they suspect there may be a conflict of interest.
Powers of Attorney
What is a Power of Attorney?
A Power of Attorney is a written authorization that gives the authority of one person to act on another person’s behalf in financial decisions or legal matters.
At this time you should consider whether or not you may require a Power of Attorney. This document allows your attorney (the person appointed by you) to manage your real estate and financial affairs in your place. This is particularly useful if you become incapacitated due to physical or mental health problems, or in the event of your absence. In this situation, an attorney may be granted authority to act on behalf on the person granting the Power of Attorney either when the grantor is still capable or has become incapable of making their own decisions.
Why do I need a Power of Attorney?
If you would like to grant authority to someone to make personal and financial decisions on your behalf, a Power of Attorney is a great tool to give your family the ability to manage your affairs if you ever become unable to manage them yourself.
Who can be my attorney?
You can choose almost anyone to be your Attorney.
They must NOT:
- be under 19 years of age
- provide you with personal care or health care services for compensation
- be an employee of a facility where you reside and where you receive personal care or health care services.
What does an Attorney do?
Your attorney can do almost anything that you can do in terms of making legal and financial decisions on your behalf. Common tasks include:
- Banking (deposits, withdrawals, paying bills, managing accounts)
- Dealing with government agencies (such as Canada Revenue Agency)
- Dealing with property (selling your property if you are moved to a home)
Your Attorney does not have the authority to make a Will on your behalf.
Can I have more than one Attorney?
Yes, you can appoint multiple Attorneys and you can decide if you would like them to work together or separately when managing your affairs.
If I have a Will, do I still need a Power of Attorney?
It is a good idea to have both documents in place. A Will does not come into effect until your death whereas a Power of Attorney may be used while you are still alive but incapable of carrying out certain legal and financial tasks on your own.
A Power of Attorney is only valid while you are alive and the Will will take effect upon your death.
Can my Attorney make health care decisions on my behalf?
No. A separate legal document called a Representation Agreement can be drafted by your Notary in addition to the Power of Attorney to ensure that your wishes for health care are met along with your financial and legal matters.
A Representation Agreement allows you to appoint someone to make medical decisions on your behalf.
Who can be my Attorney?
The person who you appoint as your attorney should be someone who is prepared to accept the responsibility. The person must be 19 years or older, must be mentally capable and understand what it means to have power of attorney or to be a representative. You can appoint your spouse or partner, a friend or a family member. You can appoint more than one person. An attorney’s authority starts from the moment the Power of Attorney is signed, not when a need arises so it is essential that the person be trustworthy. There are some precautions a person can take to prevent it being used while you are still able to look after your own affairs.
A Representation Agreement is a tool that allows your appointed representative to make personal and health care decisions for you. There are 2 types of Representation Agreements, Standard and Enhanced. Standard Representation Agreements cover routine financial and/or health care decisions, while Enhanced Representation Agreements give broader powers to the representative, including end of life decision making.
Representation Agreements are much more thorough than the Power of Attorney. They may include your health care needs, you may appoint different representatives for different purposes and you may appoint a Monitor who will ensure that your representative is carrying out your wishes. In some cases the monitor is optional.
What is a Notarization?
The act of officially certifying a legal document by a Notary Public. The purpose of having a legal document notarized is to ensure the authenticity of the signatures that appear on the document.
What type of documents can be Notarized?
Any document that is required to be witnessed by a Commissioner or Notary Public in and for the Province of British Columbia can be notarized at our offices. Common documents that are typically required to be notarized by a Notary Public include:
- Statutory Declarations
- Travel Consent Letters for Minor Children
- Contracts and Agreements
- Certified True Copies
- Insurance Loss Declarations
- Letters of Invitation for Foreign Travel
- Passport Application Documentation
- And more…
What do I need to bring?
Before your signature can be attested to, you must provide 2 pieces of identification, of which at least one is government-issued (such as a driver’s license).
Real Estate Purchase and Sale
What is a Conveyance?
A conveyance is the legal process of transferring property from one owner to another. A Notary Public will register the title at the Land Title Office and will remove any encumbrances affecting a clear title.
First time buying a house?
The Notary will consult you on your purchase to ensure that the title is transferred into your name by way of a smooth, seamless transaction. You may be required to obtain financing and insurance for the transfer to complete.
You may qualify for a first-time home buyer’s grant which the Notary will discuss with you and apply to your purchase.
What is Property Transfer Tax?
When you purchase or gain an interest in property that is registered at the Land Title Office, you are responsible for paying property transfer tax. It must be paid when an application for a taxable transaction is made at any Land Title Office in British Columbia to register changes to a certificate of title.
Family Transfers may qualify for a property transfer tax exemption.