Wills, Powers of Attorney for Property, and Powers of Attorney for Personal Care
Mary Wahbi, L L.B, TEP (Toronto)
Most people are hesitant when it comes to dealing with their Wills and Powers of Attorney. Death and Disability are not easy subjects to deal with.
Everyone who owns assets and wishes to make the decision of who will handle the assets on their death and who will receive assets those should have a will.
A properly prepared Will allows you to:
1. Choose your executor(s) who will handle your estate, rather than have a court appoint a person;
2. Choose the initial guardians of your minor children;
3. Ensure that your assets will be distributed to the people you choose and in the way you choose, rather than the distribution provided in provincial legislation;
4. Choose when a beneficiary is to receive his or her inheritance, whether immediately after death, at a specific age or in stages over a period of time;
5. Make special gifts of specific items to specific people;
6. Deal with your assets and estate in a way that maximizes tax savings and minimizes probate fees.
Wills that are more than three to five years old may need to be reviewed and up-dated to account for changes in family circumstances, desires and changes in the law.
Powers of Attorney for Property
Powers of Attorney for Property authorize the person(s) appointed to act on behalf of the person signing the Power of Attorney for Property in conducting his or her financial affairs. The authority given may be general, relating to all financial affairs, or may be limited to one or more specific investment or transaction. The authority may be indefinite in duration, or limited, for example, to during an extended vacation. The authority given is usually intended to survive incapacity and in some cases, conditional on incapacity.
Ideally, everyone over the age of 18 years should have an attorney to act in the event of loss of mental capacity or disability.
If such a tragedy occurs and a Power of Attorney for Property is not in place, in order to handle the disabled personís financial affairs, the spouse or other family member would have to be appointed by court order as the disabled personís guardian. As well, under certain circumstances, The Public Guardian and Trustee may become the disabled personís statutory guardian. Neither alternative is desirable as both would involve time, expense and aggravation at a time when it is least likely to be manageable.
Powers of Attorney for Personal Care
Powers of Attorney for Personal Care authorize the person(s) appointed to act on behalf of the person signing the Power of Attorney for Personal Care in making personal care decisions if the person giving it becomes incapable of making such decisions. Personal Care decisions are those relating to health care, nutrition, shelter, clothing, hygiene and safety.
Unlike a Power of Attorney for Property, a Power of Attorney for Personal Care can only be relied on by a third party if the person giving it is incapable of making the decision in question.
The Power of Attorney for Personal Care can provide two things. First, it allows you to choose one or more persons to make personal care decisions on your behalf if you are unable to. Second, it can contain instructions as to the decisions you want made, including authorizing or prohibiting certain types of treatment under specified circumstances. This is of great assistance to family members who are coping with the emotional impact of the illness and family disruption and are faced with making a serious medical decision.
If a person loses their capacity and does not have a Power of Attorney for Personal Care, the Provincial legislation provides a hierarchy of family members who are entitled to make the necessary decisions and the Public Guardian and Trustee as the last resort.
This Information Circular is published and distributed by Basman Smith for information purposes only. Readers should consult with a professional advisor before acting on the materials contained herein.
For further information on Wills and Powers of Attorney please contact Mary Wahbi.
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