WILLS, POWERS OF ATTORNEY, HEALTH CARE DECISIONS AND ESTATE ADMINISTRATION
We are able to assist you with the preparation of your will and other life planning documents such as a power of attorney and health care directive.
It is important to have a will. In one way or another, your assets need to be dealt with after you are gone. A will ensures your assets are distributed as you wish.
If you are uncertain about the need for a will or have just been putting it off, you need to consider what happens if you do not have a will. Without a will, there is an additional legal and administrative burden for surviving family members that could have easily been avoided by providing instructions in a will.
If you do not have a will, your estate is distributed according to the inflexible provisions of the Intestate Succession Act with no consideration for your personal wishes.
A will allows you to name the person, an executor, to take care of the distribution of your estate. Without a will, someone needs to make an application to the court to be appointed the administrator to deal with your estate. This will result in a delay in distribution of the estate and costs to the estate.
The administrator will have to purchase a bond to ensure administration of the estate. An executor named in a will does not have to post a bond.
Your will can also specify funeral arrangements or wishes. When planning your will, the following are the main issues to consider when meeting with your lawyer to provide instructions.
The executor is the person you name to manage collection of the estate assets, payment of debts and distribution in accordance with the directions in the will. It is a good idea to name an alternate executor in case your first choice predeceases you or is unable or unwilling to act. The executor is also responsible for dealing with funeral arrangements subject to any wishes set out in the will.
The will is your opportunity to specify how your assets are divided. It is important when giving instructions to your lawyer to have a complete picture of your assets, details of insurance policies, investments and beneficiaries named in those assets.
Guardians for Children
If you have children under the age of 18 years the will can specify who you would like to be named as their guardians if both parents are deceased. A court will still make the final decision on guardianship but your wishes will be taken into account and are persuasive. Without a will, the court does not have your input as to who raises your children. The will allows you to make sure the guardian is not someone you do not want to raise your children.
A will also let you control when children will receive their share of the estate. Without a will, they may receive their portion before you prefer. A will also ensures any stepchildren are provided for.
Changes to a Will
Once you have a will, it is a good idea to review it every few years to ensure your will still reflects what you want and is current.
You should also review your will upon certain life events, such as: marriage, separation, birth of a child or death of a spouse. For example, marriage nullifies a prior will.
Changes to a will must be made in the proper manner in accordance with the Wills Act to ensure validity. It is best to consult an attorney about changes you want to make and how they should be done.
Power of Attorney
A Power of Attorney is a document that gives another person the authority to act on your behalf regarding your financial matters including your bank accounts, investments and property. The person to whom you give the power “steps into your shoes” to deal with your financial matters as you can.
When the time comes that you are unable to manage your affairs, whether due to health problems, accident, mental incompetence, or simply because you are no longer able to get around, it is important to have arrangements in place for someone you trust to make decisions on your behalf.
The person giving the power is called the donor. The donor must be mentally competent at the time they sign. If they are not, they cannot sign a Power of Attorney.
The person receiving the power is called the attorney. The attorney should be someone in whom you have complete faith and trust to act in your best interests.
The Power of Attorney terminates upon your death. At that point, the Will takes over.
Without a Power of Attorney, it would be necessary for someone to make an application to the Court to obtain an order to be given the authority to manage your affairs. That person is known as a “Committee”. Obtaining such an order is a time-consuming, cumbersome and costly process that could have easily been avoided if the person had signed a Power of Attorney while they were competent.
There is an extra obligation imposed by the Court on the Committee. The person will be required to regularly report to the Court and provide an accounting for as long as they act in that role and which costs will be paid from the person’s estate.
Enduring Power Of Attorney
The most common type of Power of Attorney is an Enduring one, which survives the donor becoming mentally incompetent. It takes effect upon signing.
The other type is a Springing Power of Attorney. It only “springs” into effect upon the donor becoming mentally incompetent. It requires an extra step of someone making a declaration the donor has become incompetent. This could result in a delay in being able to use the Power of Attorney when the need arises.
Who Can Be the Attorney?
The attorney must be an adult with mental capacity. A person can name more than one attorney. If there is more than one they can act jointly or successively.
Whomever you choose, the person should of course be someone you can trust completely to manage your affairs in your best interests.
Health Care Decisions
The Power of Attorney only deals with financial and legal matters. It does not deal with health care issues.
A Health Care Directive allows you to set out your wishes about medical treatment you do or do not want when you unable to give instructions about your care.
There are two different types of directives. One specifies the types of treatment you do or do not want. The other instead names someone as a proxy to make those decisions for you when the need arises.
If you name a proxy, it is important that you discuss your wishes with the proxy before you become incapacitated so the person knows and understands your wishes so they will act as you wish.
Probate or Administration
We also provide services for estates. If you have been appointed an executor in a will, it is likely you need to have the will probated. A Grant of Probate is an order from the court determining a document is a valid will.
In situations where there is no will, or a will but no executor appointed, it will be necessary to make a court application for someone to be appointed administrator of the estate.
After the probate or Grant of Administration has issued the executor can begin to deal with the estate: calling in the assets, paying the estate debts and distributing the estate in accordance with the will.
What if there is no will? We help the family through the process of appointing an administrator for the estate. It takes a little more time, but someone can be appointed to look after the affairs of the deceased so that obligations can be met and the estate distributed according to law.