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Power of Attorney: Empowering you to help your loved one

Power of Attorney: Empowering you to help your loved one

Follow us, as Elizabeth Murray tells the moving story of her mother’s battle with dementia. In this blog series, Murray explores every part of the experience of caring for someone with dementia, sharing her memories and insights from it all. Her words serve as a great reminder of the many ways dementia affects our lives, and the lives of our loved ones.

Moving my mother into a nursing home was a difficult decision. Executing that decision was even more difficult.

My mother had always been fiercely independent. Even after my father died and she lived alone, she was determined to do everything for herself.

My mother knew that if she were to become mentally incapable, someone else would have to make decisions about her health care, medical treatment and living arrangements. We had discussed the benefits of a Power of Attorney for Personal Care and she acknowledged that I was the person she would want to have make those decisions if she couldn’t do so herself. The problem was that she really believed she would always be able to determine her own destiny; that she would always be able to live alone and take care of herself.

Although my husband and I were both lawyers and we knew the consequences of our inaction, neither of us were inclined to push the issue and persuade her to sign the document.

When my mother was diagnosed with dementia, she wasn’t prepared to admit that she needed assistance of any kind and she certainly wasn’t prepared to move out of her house voluntarily.

When my mother was no longer safe living on her own, I didn’t have the authority to move her into a nursing home or to ensure that she received appropriate care. Before I could make any decisions on my mother’s behalf, I had to apply to court and ask to be appointed as her committee. The process was cumbersome and time-consuming. It added to the stress of an already stressful situation.

Contemplating a time when a Power of Attorney for Personal Health Care is required is not easy, but the decision is an important one to make. Don’t make the same mistake I did. It’s better to have a plan and not need it than to need a plan and not have it.

What is a Power of Attorney?

A Power of Attorney is a legal document that gives someone else the power to act on your behalf. This person is called your “attorney,” though he or she is not usually a lawyer. Powers of Attorney for Personal Care deal with the following matters:

• The appointment of an attorney and the appointment of an alternate attorney if the first named attorney is unable or unwilling to make a decision or is not readily available to make a decision;
• The types of decisions an attorney is authorized to make regarding your care;
• Medical directives with respect to treatment;
• Provisions for payment of compensation to the attorney for the decision-making; and
• Provisions to protect the attorney from decisions that might be unpopular with some members of a family.

Depending on where in Canada you live, a Power of Attorney for Personal Care may be called a power of attorney, a personal or health directive, or a representation agreement. Sometimes, the same document can deal with personal care issues as well as financial matters. A committee may also be called a guardian.

At the Alzheimer Society of Ontario, you can find many resources to help you prepare for the future at www.alzsuperhero.ca

 

Written by:

Writer Elizabeth Murray
Elizabeth Murray
Retired lawyer and the author of Holding on to Mamie:  My Mother, Dementia and Me.
For more information about Elizabeth and her story visit www.holdingontomamie.ca.

Make a Will Month – What gifts can I give?

Make a Will Month – What gifts can I give?

November is Make a Will month in Canada – and this is my sixth and final blog post here for the Alzheimer Society. I would like to thank them so much for this incredible opportunity.  The work being done by the Alzheimer Society is incredible and so needed. Hopefully one day there will be a cure for this horrible disease. Now on to my post.

The law in Ontario is pretty wide open with regards to giving gifts of property in a Will.  You have almost complete discretion.  The vast majority of my married clients leave all of their property to their spouse with a gift over to their children with a further gift over to their grandchildren.  They often will pick out specific gifts to give to specific people.  This is not a required way to do things, it is just the most common.

In addition, my clients will often choose to give charitable gifts to registered charitable organizations like the Alzheimer Society, in order to take advantage of very favourable tax breaks the Canadian government provides.

When you speak to a lawyer or the planned giving departments of charitable organizations like the Alzheimer Society they can talk you through the various ways and the many benefits of including charitable giving in your Will.

When you have decided who is going to get what property, there are certain things you should keep in mind.

First, you are required to provide for your dependents. If you do not, the dependant has the right to bring a court action to essentially rewrite the Will. The court will look at the overall regime set up in the estate, and will only uphold a Will if it is of the opinion that it has sufficiently provided for the dependents.

Second, if a spouse is not satisfied with a Will, he or she can decide to ask for an equalization of property instead of taking under your Will.  This will likely thwart any plan to leave a spouse out of your inheritance.  It is therefore important to ensure that your spouse is reasonably provided for in your Will.

Third, there are ways to minimize your taxes, by structuring certain trusts, and appointing on your Life Insurance Policies and Designating Beneficiaries under certain registered plans like RRSPs and RRIFs.

Fourth – if your beneficiary might qualify for Disability Benefits under the Ontario Disability Support Program, there are certain trust options that are available, that can allow the beneficiary to continue receiving government assistance after receiving an inheritance.  Often people give gifts to disabled beneficiaries without taking into account the impact it will have on their government benefits.

Certain religions have specific requirements for gifts given in a Will. In most cases, those requirements can be met as long as dependents are looked after and the spouse does not elect equalization. Some religions have specific workarounds that are accepted by the religious authorities. Those items I defer to the religious leaders, but it is important for you to ask the question if that is important to you.

Other than that, there is pretty wide freedom for you to decide who gets what after your death. This freedom only exists if you take the time to make a Will. The alternative is for a government formula to decide who gets your property. It might work out the way you wish. It might not.

You do not need a lawyer to make your Will. There are online forms that you can fill out. That said, a lawyer can help guide you through the process in simple and easy to understand way.  A lawyer can make suggestions as to the most tax effective way to structure things. A lawyer will keep up with changes in the law as they occur to assist in making sure that your documents are up to date. A lawyer will make sure that you have not forgotten important things.

The process is NOT as expensive or time consuming as you may be imagining. The time and money invested in these documents such as your Will and Powers of Attorney is well spent; clients gain clarity and peace of mind.

Please feel free to contact me if you have any questions about making your Will and Powers of Attorney. Finally, I would like to thank Sadie Etemad for her assistance in putting together these blog posts.

 

Written by:

Stephen Offenheim

Stephen Offenheim,
The Law Office of Stephen Offenheim
http://www.planyourwill.ca
(416) 863-1300
steve@planyourwill.ca

Make a Will Month – Powers of Attorney and Living Wills. What are they? Do I need one?

Make a Will Month – Powers of Attorney and Living Wills. What are they? Do I need one?

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.

 

Written by:

Stephen Offenheim

Stephen Offenheim,
The Law Office of Stephen Offenheim
http://www.planyourwill.ca
(416) 863-1300
steve@planyourwill.ca

Make a Will Month – Tips on how you can get ready

Make a Will Month – Tips on how you can get ready

It is Make a Will month in Canada, and I am thrilled to be able to guest blog here on the Alzheimer Society of Ontario’s website.  In a previous entry, I outlined the things you need to do to get ready to make your Will. One of the most important things you will do when you make your Will is to decide who will manage the business of settling up and closing your estate once you die – in other words, choosing your Executor.

The person(s) who you appoint to manage your estate is known as the “Executor” of your estate.

In general, your Executor is responsible for the following:

  1. Arranging your funeral;
  2. Paying your debts;
  3. Filing Taxes;
  4. Holding, managing, buying and selling property as is appropriate for the circumstances of your estate;
  5. Holding property in trust for minors; and
  6. Delivering the gifts to the beneficiaries set out in your Will.

 

An Executor does not need a high level of expertise as they can hire professional advisors to assist with legal and accounting matters.  However, your Executor should have a basic understanding of finances and should not be overwhelmed by financial responsibilities and paperwork.

Even more important than specific expertise is trustworthiness.  Since your Executor will have the authority to manage your finances, access your bank accounts, investments, etc., there is opportunity for mismanagement or fraud by the Executor. Unfortunately it happens more than we would like to think. APPOINT SOMEONE honest, reliable, considerate and confident who shares your values and can be held to his/her word.

When choosing your Executor, also keep in mind that it is not an easy task and your Executor may be forced to make unpopular decisions. Therefore you should ask yourself the following questions:

  • How will my Executor(s) deal with all of the paperwork required to complete my estate?
  • How will my Executor(s) communicate with my beneficiaries and other potential stakeholders, including various institutions, government agencies and professionals such as lawyers, accountants, etc.?
  • How will my Executor(s) hold up if faced with pressure from the beneficiaries?
  • How will my Executor(s) hold up, in circumstances of personal grief or personal financial difficulties?

 

Your Executor should be over the age of 18. It is preferable to have your Executor reside in the Province of Ontario if you are an Ontario resident. Non-resident Executors must purchase insurance bonds, which is an expense that will come out of your assets. There are also tax implications for non-resident trusts.

Finally, if you are facing difficulties in choosing an acceptable Executor, consider hiring an estate lawyer or a trust company to act as your Executor; it just might be the right thing for you.

Making your Will can feel overwhelming and stressful. I completely understand. This is why The Law Office of Stephen Offenheim (planyourwill.ca) is committed to making the process easy, and understandable.  For a free telephone consultation please contact me at steve@planyourwill.ca.   No question will be left unanswered.

 

Written by:

Stephen Offenheim

Stephen Offenheim,
The Law Office of Stephen Offenheim
http://www.planyourwill.ca
(416) 863-1300
steve@planyourwill.ca

 

November is Make a Will Month.  And this month YOU could be our Super Hero!   By doing your Will and including a charitable gift you can save taxes, protect those you care about and help save the world from dementia!   Act now!  Click here to request your free Estate Planner and Guide or call Kristy Cutten at 416-847-8915.

Make a Will Month – What is holding you back?

Make a Will Month – What is holding you back?

“When you believe in things that you don’t understand, then you suffer.”
– Stevie Wonder

Early in my career as a lawyer I had a client who called me because she wanted to make her Will and powers of attorney.  I provided her with the information that she needed and asked her when she wanted to meet to give me instructions to prepare the Will.  She told me she would get back to me.

I put her on what I call my “hound list” – a list of people I follow up with from time to time who have expressed interest, but not yet retained my services.  From time to time I would send my client a friendly reminder encouraging her to set up an appointment with me. Each time, she would say that she was ready to go, and that I should call her.   When I called her, she would tell me that she really wasn’t ready yet.   This happened three times.  On the third time I asked her what was holding her back. She literally hung up the phone on me. I was wondering if I had been rude, or had said something wrong.

A few days later I received a phone call. “Steve”, she said, “I want to tell you the reason that I have been delaying making my Will.”  The panic and anxiety in her voice was clear.  After a fairly long pause she said “I’m going to die”.

I was immediately upset and worried. Was she sick? Was there urgency to get this done for her? As delicately as I could I asked, “Are you sick?”

“No.”, she replied, causing me great confusion.

“Is there another reason you are going to die?”

It turns out that she wasn’t going to die – at least not imminently.  She grew up in a family where you simply did not talk about death. It was a taboo subject. The belief being that if you talked about death, you were inviting death. In essence if she made a Will, she believed that she would die shortly after.  She even had an anecdotal story of an aunt who wrote a Will, and died within a month.

People’s beliefs are people’s beliefs. Something that may seem completely irrational to one person can make complete sense to another person. I get it. Death is not a fun topic. It makes people uncomfortable. It is mysterious. It is painful.  And many people want to avoid talking about it.

I am not fond of having people on my hound list, and it is not only for business reasons.  People on my hound list have expressed interest in making their Will. I am aware of the problems that are caused when people die without a Will, or lose capacity without having powers of attorney in place.   I feel a very strong responsibility to encourage people to follow through once they have contacted me.  Whether they use my services, or someone else’s, or even do it themselves, I don’t care. Just as long as I know that they have taken care of this important step.

I used a rational approach.

“Mrs. Smith”, I said (name changed for confidentiality reasons), “Did you know that more than half of the people in Ontario do not have Wills?”  She did not know this.

“Well”, I said, “that means that less than half of the people in Ontario do have Wills – and most of them have lived long, prosperous lives, even after making their Will.”    She laughed.   A tension was broken.

“When you say it that way, it seems so silly”.

To me however, it did not seem silly. Just frightened and scared of the unknown. Once she was able to confront her fears, she was ready to go.

In my experience most adults know they should have a Will and power of attorney. There are three basic reasons they delay.

  1. Superstition/Psychological Readiness
  2. Concerns about Costs
  3. Concerns about Time

 

There is little that I can do except encourage those who are not psychologically ready to commit to making their Will.

Regarding costs there are free resources all over the internet for Wills and powers of attorney. If you aren’t comfortable doing it yourself, you should be able to find a lawyer to prepare a basic Will with a consultation for a very reasonable rate.

Making your Will can feel overwhelming and stressful. I totally and completely understand that. This is why The Law Office of Stephen Offenheim (planyourwill.ca) is committed to making the process easy, and understandable.  To set up a free telephone consultation please contact me at steve@planyourwill.ca.  No question will be left unanswered.

 

Written by:

Stephen Offenheim
Stephen Offenheim,
The Law Office of Stephen Offenheim
http://www.planyourwill.ca
(416) 863-1300
steve@planyourwill.ca

 

November is Make a Will Month.  And this month YOU could be our Super Hero!   By doing your Will and including a charitable gift you can save taxes, protect those you care about and help save the world from dementia!     Act now!  Click here to request your free Estate Planner and Guide or call Kristy Cutten at 416-847-8915.

It’s easier than you think to be a superhero! Make your Will today.

It’s easier than you think to be a superhero! Make your Will today.

Make Your Will Today!

 

At the Alzheimer Society, we believe completing your Will and Powers of Attorney for Personal Care and Property makes you a Super Hero. Why? You are putting the needs of others before yourself and protecting what’s important.

Death and taxes – two certainties?

While working at Royal Trust as a Will and estate planner, many clients would sit in a chair across from me and blurt out … there are two certainties in life:  death and taxes.  For years, even centuries, such statements were met with resignation.

However, most Canadians may be surprised to learn there is a way to avoid taxes. It all depends on the wording of your Will.  Did you know that you can help your favourite charity and help your estate save taxes?  How?

The Rules

When you donate to your favourite charity, like the Alzheimer Society of Ontario in your Will, the donation is considered to be made immediately before your death.  Similar rules apply when you name charitable organizations as the beneficiary of your RRSP, RRIF or TFSA, or of a life insurance policy.  On your final tax return, your Executor can claim all charitable donations made in the year of your death.  These include donations in the Will and those directly transferred to charities from RRSPs, RRIFs, TFSAs, or life insurance policies, and any carried forward donations from the previous five years that were not claimed, to a maximum of 100% of your net income.  Any excess can be claimed on the tax return for the previous year, again to a maximum of 100% of your net income for that year.

Depending upon your net income in the year of death and the previous year, and the total donation amount, taxes paid in the year before your death may be rebated and taxes owed in the year of death may be eliminated.

What?  Taxes eliminated and rebated?

So let’s see how that works!

The Government Rewards YOU!

TAX ELIMINATION AND A REBATE TOO!

Mr. Generous gives a charitable Will bequest in his Will  totaling =                        $50,000
Tax payable—Final year:

Mr. Generous’ net income in year of his death =

 

$40,000

Minus: Tax credit for donation (100% x $40,000 net income) =

$10,000 to be used against previous years taxes

$40,000
Tax payable =             $  0,000.00
Previous year:

Mr. Generous’ net income in year before death =

 

$  36,000

Tax paid in previous year = (assuming 35% rate x $36,000) = 12,600
Donation carried back to previous year

($50,000 bequest – $40,000 tax credit used in final year) =

 

$  10,000

Taxable income = $36,000 – $10,000 donation = $  26,000
Tax payable (assuming 35% rate x $26,000) = $   9,100
Taxes rebated to estate ($12,600 – $9,100) =            $  3,500
Benefits:

The tax for the year of death has been eliminated. The tax for the previous year, which had already been paid, is reduced and rebated.

 

Imagine the social impact – if all Canadians did their Wills (only 50% of us do) and included a charitable bequest in their Wills! Giving to a charity like the Alzheimer Society in your Will would benefit our world significantly while ensuring that your estate eliminates unnecessary tax burdens – a win – win!

November is Make a Will Month.  And this month YOU could be our Super Hero!   By doing your Will and including a charitable gift you can save taxes, protect those you care about and help save the world from dementia!    Act now!  Click here to request your free Estate Planner and Guide or call Kristy Cutten at 416-847-8915.

 

Written by:

Colleen Bradley

Colleen Bradley
Chief Development Officer, Planned Giving
Alzheimer Society of Ontario

 

Make a Will Month – This is personal for me

Make a Will Month – This is personal for me

A few months ago, my cousin posted a wonderful video of my grandparents’ 50th wedding anniversary. The year was 1994. My grandfather gave a wonderful, heartfelt speech about what his wife meant to him. The family did skits making fun of the onion sandwich he ordered on their first date. There was even Karaoke. Good times.

Alex & Clara dancing at their wedding.
Pictured above: Alex & Clara Offenheim at their 50th wedding anniversary.

While the first 50 years of marriage were wonderful for my grandparents, the years that followed for them and for our family were extremely challenging. Shortly after this celebration, my grandfather Alexander was diagnosed with a form of dementia. With his loyal wife Clara by his side, he slowly deteriorated over a 10-year period. It was absolutely heartbreaking watching a man with such wit, and intellect slowly become someone else.

Then shortly after my grandfather passed away, my grandmother was diagnosed with a form of dementia. She is now well into her 90s, and has maintained all of her class and dignity. It has been so difficult for our family to go through this more than one time.

That said we are so lucky that my grandparents had the foresight to prepare. While they had the capacity to do so, they both had prepared their Will and powers of attorney. Everything was set up in accordance with their wishes. The Will appointed executors and beneficiaries for their property. A power of attorney appointed family members to act as their substitute decision maker for matters of property and for matters of personal care.

By taking the time to do so, our family avoided the expensive court procedures associated with guardianship applications. There was no need to purchase expensive insurance or bonds that would have been required had the documents not been in place. We have saved money on lawyers, and saved so much of the aggravation and heartache that goes along with unplanned estates.

This is why I was so thrilled when the Alzheimer Society asked me to guest blog for Make a Will month. I am so passionate about making sure that people have the proper documentation in place. I know firsthand how important this is.

Over the course of this month, I will be providing you with information about what goes into making a Will. What are the things you need to consider? What are some of the traps you can fall into? If there is one message I would like send out to everyone, is that doing these documents CANNOT WAIT. It is way too important.

You may be thinking that doing a Will is expensive and time-consuming. Fees can vary greatly depending on the complexity of your Will and where you live. For example, for a straight forward Will, my law firm charges $399 for a Will and two powers of attorney, with a full consultation with a lawyer. ($699 for a couple). And it does not take very long. Most of my clients take about 3-5 hours in total to complete everything that needs to be done.

Completing these documents is so necessary. Please don’t delay; if you need information right away, there are a number of ways to reach me.
Call me now at (416) 863-1300.
Or send me an e-mail now at steve@planyourwill.ca
Or follow this link to set up a free 15 minute phone consultation or a 2 hour Will instruction session.

Thank you for taking the time to read this and I hope you come back during the month of November to read important information for doing your estate plans. Your reward? Getting into action to protect your family, your assets, and gain peace of mind.

 

Written by:

Stephen Offenheim

Stephen Offenheim,
The Law Office of Stephen Offenheim
http://www.planyourwill.ca
(416) 863-1300
steve@planyourwill.ca

Why I made my Will

Why I made my Will

A few months ago I was boarding an airplane to Mexico with my husband…without our daughter, who at the time was 10 months old. Until that point, I had not been away from my daughter for more than a few hours. I dreamed about sleeping in, but I cried at the thought of leaving her. I was also thinking about how my husband and I would be on the plane together. Should something terrible happen, I had nothing written down to protect my daughter and assets. No one would know our wishes.

I have been working in the not-for profit field since 2008, specifically in Planned Giving, which is all about getting your Will and Powers of Attorney done and reaping the benefits of leaving a gift in your Will to a charity. So I know better. I know the process to get these legal documents done. But like so many Canadians (50% of whom do not have a Will), I pushed those thoughts away until I had a plane ticket and was forced to think about the “what if?”

I called a lawyer. I was anxious. I had the tough conversation to plan for when I’m gone. I had a week to sort out with my husband who our house, savings and other assets would be left to and who would become the guardian to our little girl. The thought of someone else – no matter how wonderful a person – raising your child is crushing. But we had to make a decision and after some debate, we did.

It was not comfortable, but it’s done. Our daughter, our assets and my peace of mind are protected. The thought of reviewing our life circumstances yearly and adjusting our Wills is no longer daunting.

Although it took courage to talk about end of life planning, I now feel empowered and relieved. For those who have not gone through this process, take a deep breath and dive in.

At the Alzheimer Society we believe you can be a Super Hero by completing or updating your Will and Powers of Attorney and leaving a gift in your Will to the Alzheimer Society. Why? Because you are doing what is right, taking action, protecting your family and your assets and saving the world from dementia. You can do it!

Shawn-2Shawn Paron

Chief Development Officer, Planned Giving

Alzheimer Society of Ontario