A well-drafted Will and Powers of Attorney are the basic elements of most estate plans. Without a Will, the province will decide who will be in charge of your estate and where all of your assets will go. It is especially important for anyone with children to have a Will. Assets set aside for children may be difficult to access before the child turns 18. Assets are transferred to children when they turn 18, whether they are capable of managing their inheritance wisely or not. Also, having a Will allows you to name the persons you choose to be your children’s guardian. In addition to giving up control over your assets to the province, not having a Will means you have forfeited the opportunity to reduce taxes and fees payable upon death.
What To Think About When Making Your Will:
- Who would you like to see inherit your estate?
- Who is dependent on you for financial support or other assistance?
- What do you own and are all assets in your name?
- What are your debts and financial obligations?
- Have you named beneficiaries for your life insurance, pension plan and registered savings plans?
- Who would be the best person to look after your estate?
- If you have young children, who would you like to look after them if you can’t?
These questions and more will be discussed in detail when we meet to talk about your needs and goals for your Will and estate plan.
Choosing an Executor:
When choosing an executor or estate trustee you should look for someone you can trust. The executor will be in control of your assets after you are gone. That person should have familiarity with your financial and family situation. You should feel confident that the person you choose is able and willing to accept the responsibility of looking after money and property for other people. You will need to consider the possibility that your first choice of executor is unwilling or unable to accept the role and name alternate executors who will act if that happens
Powers of Attorney
At the same time as you make your Will we recommend that you ensure you have up to date Powers of Attorney. In Ontario, there are two commonly-used types of Power of Attorney documents: the Continuing Power of Attorney for Property; and the Power of Attorney for Personal Care. Both of these documents are required to ensure that you are looked after by people you trust and who care about you, should you become incapable of self-care.
Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property is a legal document in which you state who you want to manage your financial affairs in the event that you become incapable of looking after your own finances. These documents are only in effect while you are alive and must be made while you have the capacity to manage your own finances. If you lose the capacity to manage your own financial affairs and you do not have a valid Continuing Power of Attorney for Property in place, the government office of the Public Guardian and Trustee may assume control of your assets and begin managing your finances on your behalf, or someone close to you may have to apply to court to be appointed your guardian of property. While making a Continuing Power of Attorney for Property is an important part of an estate plan, these documents typically give your chosen attorney the power to do almost anything with your property that you could do (except make a new Will). It is therefore of vital importance that you choose your attorney carefully and ensure all other safeguards are in place to protect yourself against misuse of your Continuing Power of Attorney for Property.
Power of Attorney for Personal Care
A Power of Attorney for Personal Care is a legal document in which you name the person or people you want to make decisions about your personal care in you can’t make them for yourself. This document only comes into effect if you lose the ability to make personal care decisions for yourself. Most people think of the Personal Care Attorney as the person who is chosen to make health care decisions such as whether to discontinue life support, but the attorney might also be called upon to make personal care decisions such as determining where you would live and who would provide care for you, if you weren’t able to look after yourself. In Ontario, the Power of Attorney for Personal Care is the document where you can provide direction about your wishes for future care including end of life treatment.
Will Information Form
Before you meet with our estate planning lawyer you may wish to review our Will Information Form. We will email a copy of this form to you in advance of our first meeting, if requested. Reviewing this form will give you a better understanding of the kind of information we will need from you to help us advise and assist you with developing your estate plan. It is not necessary for you to complete this form in advance of our meeting (although some clients do prefer to do so) and some of the questions are not relevant to all individuals.