Estate Planning: Wills and Powers of Attorney

There is one simple question at the heart of estate planning - how will decisions be made when you are no longer able to make such decisions? Estate planning addresses this question both for when you are alive and incapable, and when you have passed away.

No matter what your financial means, it is important that you plan for what will happen to your estate. A poorly planned estate can divide families during an already difficult time.

Proper estate planning involves two types of documents: Powers of Attorney and Wills.

Powers of Attorney

Under normal circumstances, we make our own decisions and the question of what our wishes are is not an issue. Unfortunately, accidents, illness, or disease may render us incapable of making these decisions for ourselves. A Power of Attorney is a means by which we can ensure that our wishes are met in such a situation.

A Power of Attorney is a contract which appoints or authorizes the person named therein (your attorney) to act on your behalf and with your full authority when you may be unable to do so, such as during a time of legal incapacity. A Power of Attorney is valid only during your lifetime and ceases to be valid upon your death.

The Substitute Decisions Act recognizes two different Continuing Powers of Attorney:

  • Power of Attorney for Property (finances); and
  • Power of Attorney for Personal Care.

The person making a Continuing Power of Attorney for Property may give his or her attorney the authority to make any type of decision related to the person's property (finances) that the person can make themselves, except to make a Will. Conditions or limits can be imposed or it can be all encompassing. The person must be at least 18 years old and mentally competent.

The person making a Power of Attorney for Personal Care authorizes his or her attorney to make decisions for health care, nutrition, shelter, clothing, hygiene or safety if the person is incapable of making decisions on his or her own. The person must be at least 16 years old and mentally competent. This power includes the right of the attorney to give or refuse consent to medical treatment on the person's behalf.

Powers of Attorney are important legal documents and should be prepared after careful consideration and legal advice. The cost of preparing Powers of Attorney are greatly exceeded by the peace of mind knowing that someone you trust will make decisions for you and be able to deal with your business affairs during a period of incapacity.

Wills

The other half of estate law addresses the issue of making our wishes known once we have passed away. When that inevitable day happens, we all leave behind an estate. A Will is a written document which provides for the disposition of your estate. It allows you to determine how your estate will be divided upon your death. This ensures that the people you love will be able to benefit from your estate.

Good estate planning, however, is more than just writing a Will. It requires careful thought about who will execute the Will, what decisions you will ask your executor to make and how to deal with events you may not have anticipated would arise. A well planned estate ensures that once we pass away, the difficult decisions will have already been made.

In the absence of a Will, your property will be divided amongst immediate family members in specified proportions as set out by law. These proportions are subject to the claims of dependents who may not be adequately provided for in the statutory scheme and subject to the claim of a surviving spouse under the Family Law Act. The division and method of distribution may not be what you intended and may not meet the needs of your family. Without a Will, minor children will receive their share of your estate at the age of eighteen, whereas many people provide in their Will that their children or grandchildren should not receive their share until a later age, such as twenty-one or twenty-five. In addition, distribution of your estate is likely to be slower and more expensive if there is no Will.

Wills are important legal documents and should be prepared after careful consideration and legal advice.