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The Importance of Proper Planning

April 25, 2018

Clients often ask what documents they should have in place to ensure they have properly prepared for a health care emergency, illness, or passing.  In short, if you own property, are getting older or if you have dependants, there are three documents you should prepare to help your loved ones manage your affairs.

 

Last Will: Your Last Will describes how to distribute your estate after you die.

 

Personal Directive: Your Health Care Directive (also called Living Will or Health Care Directive or Advance Decision) is used to appoint someone to make health care and personal care decisions for you, of a non-financial nature, and describes any medical treatment preferences you may have in the event you are no longer able to communicate or are incapable of giving consent.

 

Power of Attorney: Your Power of Attorney grants authority over your financial decision making to someone you trust should you become unable to communicate or incapable of giving consent. A Power of Attorney may also be used to grant full or limited powers over your financial affairs when you will be travelling or otherwise unavailable.

 

Prior to studying law I practiced as a nurse for many years.  I all to frequently watched families struggle to make decisions on behalf of their loved one, without having been granted proper authority or direction via a Health Care Directive or Power of Attorney.  This added a great deal of stress onto an already difficult situation.   

 

"It is my belief that all three of the above mentioned documents hold equal importance, and as such I include a Personal Directive and Power of Attorney with all Wills at no additional cost."

 

Below you will find some of the most frequently asked questions I receive regarding wills, personal directives and power of attorney. 

 

LAST WILL AND TESTAMENT

 

Q.  When Do You Need a Last Will & Testament?

A.  A Last Will & Testament is recommended for any individual who has assets and/or properties that they wish to distribute personally when they pass away. Contrary to popular belief, Last Wills are not only useful for seniors, but also for anyone who wishes to dictate how their assets will be divided instead of leaving it up to the court to decide.

 

You should create a Last Will & Testament if you:

  • Get married, have children, or separate from a spouse.

  • Have monetary assets, such as investments, savings, etc., that you wish to distribute to family or friends.

  • Own property and wish to leave it to specific beneficiaries.

  • Own a business (or shares in one) and wish to leave it to someone specific.

  • Travel frequently.

  • Have a dangerous job.

  • You should also update your Last Will after any major life event, including a significant increase in assets, a marriage, a child, etc.

 

Q.  What Information is Included in a Last Will & Testament?

A.  To complete your Last Will & Testament, you will need to provide:

  • Personal information about yourself, such as your name and address.

  • Your current marital status.

  • Who you wish to name as your executor, and their address.

  • Information about all of your biological and legally adopted children.

  • Information about any assets or gifts you wish to give and the recipients or beneficiaries of them.

Q.  What Parties are in a Last Will & Testament

A.  There are many different parties in a Last Will & Testament, and each has a different role.

 

Testator/Testatrix: A Testator or Testatrix is the person that the Will is being created for and whose property will be distributed once they are deceased.

 

Executor/Personal Representative: An Executor is the person who the Testator or Testatrix has designated to administer their wishes in terms of how the estate will be divided. You may have more than one executor, and you should have an alternate personal representative should anything keep your first choice from being able to carry out your estate plans.

 

Beneficiary: A beneficiary is someone who will receive either an aspect of, or all of your estate. You may name multiple beneficiaries and divide your assets as you see fit.

 

Pet Caretaker: If you have pets, a pet caretaker is someone who you would name to care for your pet upon your expiration.

 

When considering who should be your executor or pet caretaker, ensure that it is someone trustworthy and someone who can handle the weight of managing your affairs after you pass away. Talk to your executor and pet caretaker beforehand to ensure that they are willing to be a part of your Last Will & Testament.

 

Q.  What is the Residue of an Estate?

A.  The residue of your estate is what is left after all of your debts, funeral expenses, taxes, and other balances have been paid. The residue of your estate is generally what you leave to your beneficiaries. In your Will, if the residue is not left to any beneficiary, it will be distributed as decided by a court.

 

Q.  What is the difference between a Last Will and a Personal Directive?

A.  A Last Will is used to distribute your property after your death. A Personal Directive allows you to specify, in writing, your health care preferences for the time when you no longer have capacity to provide consent. A Last Will cannot be used to specify what type of medical treatment you want.

 

PERSONAL DIRECTIVE

 

Q.  What is a personal directive?

A.  A personal directive (also called an advance directive, health care directive or living will) is a written document, or set of documents, that is used to express your health care wishes when you are no longer able to personally communicate those wishes.  It may name a person, called an agent or proxy, to make health care decisions for you when you are no longer able to make decisions for yourself. Usually, an advance directive contains specific directions on the course of action you would or would not like to take if you are in a terminal condition, a permanent coma or in a persistent vegetative state. It may provide instructions on whether or not you wish to receive artificial life support, artificially administered food and water or comfort and care.

 

Q.  Why do I require a health care directive?

A.  Should you suffer from an accident or illness, you may not be able to communicate the type of treatment you wish to receive. In such circumstances, your health care provider and your family will be obliged to guess what your health care wishes are. However, if you have signed a health care directive, your health care wishes will be clear and no guess work will be required.

 

Q.  Who can make a health care directive?

A.  Generally, any person who has the ability to understand information that is relevant to the making of a personal care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision may make a personal directive. In Alberta the author must be at least 18 years of age.

 

Q.  Do I need a health care directive if I already have a last will and testament?

A.  Yes, health care directives and last wills are very different. Your last will and testament deals with the distribution of property after your death. In contrast, a health care directive deals with your health and personal care and applies when you are alive and cannot communicate your wishes.

 

Q.  If I have an enduring power of attorney do I also need an advance directive or power of attorney for personal care?

A.  Durable powers of attorney and powers of attorney for personal care are both documents used to authorize someone to act for you after you have lost capacity or if you cannot communicate. However, an enduring power of attorney usually allows an attorney-in-fact to make decisions relating to only your property and finances while a power of attorney for personal care allows an agent or personal representative to make decisions relating to your health care. Consequently, you should have an advance directive or power of attorney for personal care in addition to any enduring power of attorney.

 

Q.  Will my health care directive be legally binding?

A.  Once properly signed and witnessed, your health care directive will be legally binding on family, friends and health care personnel (to the extent your directions are consistent with accepted health care practices). However, health care practitioners are not required to ask whether you have signed a directive or search for a directive. Ensure that your family, friends and health care representative know that you have signed a health care directive and let them know where it can be found.

 

Q.  Will my health care provider be obliged to follow the instructions in my health care directive?

A.  Health care providers must follow your health care instructions (to the extent your directions are consistent with accepted health care practices). If a health care provider is unwilling to follow your directions, the provider is usually obliged to refer you to another health care provider who will honour your instructions.

 

Q.  How long will a health care directive last?

A.  A health care directive will last until the time of your death unless you have revoked it sooner.

 

Q.  What should I do with my health care directive once it has been properly signed and witnessed?

A.  You should discuss your health care directive with your health care representative, your family and your family physician. Additionally, you should provide these parties a copy of your directive.

 

POWER OF ATTORNEY

 

Q. What is a Power of Attorney?

A.  A power of attorney is a document in which one person, the ‘Principal’, appoints another person, the ‘Attorney’, to act for him or her. There are many reasons why you might want to appoint someone else to look after your financial affairs. 

 

For example;

 

You are going to be out of the country for a lengthy period of time, you may want someone to do your banking while you are gone. 

 

You are approaching old age, you may want to give a power of attorney to a person you trust so that he or she can manage your property for you.

 

Q.  What is the difference between Ordinary and Enduring Power of Attorney?

A.  An Ordinary Power of Attorney is only valid as long as the donor is capable of acting for him or herself. If the donor becomes mentally incompetent (loses capacity), the ordinary power of attorney ends.

 

An Enduring Power of Attorney remains valid even if the donor later becomes mentally incompetent. The donor must be competent at the time an enduring power of attorney is made.  In either case, the power of attorney becomes invalid when the donor dies. A power of attorney cannot be used to bequeath property upon the death of the donor.

 

A person is incapable of managing property if the person is unable to understand information relevant to making a decision about the management of property, or if the person cannot appreciate the foreseeable consequences of making, or not making, a decision about the management of property.

 

If you have questions about any part of your Estate Plan please feel free to contact SUMMIT LEGAL GROUP for an appointment. Phone: 587-356-0356 or Email: admin@summitlegalgroup.ca

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