It’s Make a Will month. As guest blogger for the Alzheimer Society this month, my focus has been on – you guessed it – Wills.
The importance of making a Will is clear. You get to choose who will get your property, who will be guardians of minor children, and who will manage the business of your estate. This planning is important to determine what will happen after you die.
But what happens before you die? As the people at the Alzheimer Society know all too well, health and mental capacity sometimes deteriorates. What happens when a person loses the capacity to make legally binding decisions?
Without proper documentation in place, a family dealing with a loved one’s loss of capacity often must begin expensive and time consuming legal procedures to obtain authority to make those decisions. This is a situation that is easily avoided, by putting the proper documentation in place while you do have capacity.
In Ontario, there are two different documents that should be created as a part of any comprehensive estate plan. A Power of Attorney for Property and a Continuing Power of Attorney for Personal Care.
These documents allow you to make decisions on your behalf in the event that you are unable to make those decisions yourself. One for property and one for personal care decisions.
Like the appointment of Executors discussed in an earlier blog post, the Power of Attorney for Property can be quite dangerous in the wrong hands. People can fraudulently access your property. It is therefore absolutely essential that you appoint someone that you trust totally and completely. When I say totally and completely, I mean TOTALLY AND COMPLETELY. You are able to limit the powers in the document, but that makes it much less effective, and defeats the whole purpose of making the document, which is giving someone the power to deal with your property if you lose capacity. The more limited the document, the more difficult it becomes to effectively deal with your property.
A Power of Attorney for Personal Care, is a document that allows you to appoint a person to make health care, housing, hygiene, and other personal care decisions on your behalf. The document allows health care providers to easily determine who has the authority to give consent on behalf of the person who made the document.
Powers of Attorney are essential, because they are so simple, and avoid bringing expensive and time consuming court proceedings in order to manage a person’s affairs.
There are kits available online to prepare these documents. The Alzheimer Society of Ontario also has an estate planner and guide available free of charge. I urge you to complete these documents immediately.
If you need assistance, please feel free to contact me if you have any questions about how these documents work. My law firm’s $699 Family Protection Plan for couples includes 2 Wills and 4 powers of attorney. As mentioned in a previous blog, the time and money invested in these documents is well spent; clients gain clarity and peace of mind.
What if you have very specific ideas about how you would like your care to progress in the event that you are not able to give your own instructions? This is where Living Wills come into play. A Living Will (or advance health care directive) sets out binding instructions for your attorney for personal care regarding your treatment.
Without a Living Will, your attorney for personal care has full discretion to make decisions as he or she sees fit. It is up to that person. If you have a Living Will in place, your attorney for personal care and health care professionals are required to follow your instructions.
Some people want to make a Living Will so that their decision maker has clear guidelines to follow. Some people do not want to make a Living will so that they do not tie the hands of their decision maker. It is a personal case by case decision.
A Will and estate lawyer can help you work through the process of powers of attorney and Living Wills. If you would like more information about this or any other Will and estate matter, please feel free to contact me.