BACK TO BASICS – ESTATE PLANNING
Most of us are aware that we should have a properly prepared Will in order to deal with our affairs upon death. If you do not have a Will, you are not alone. One of the most frequent statements that we hear from our clients is: “I’ve meant to sign a Will, I just haven’t gotten around to it yet.”
If we can offer you just one piece of advice, it is that, for the sake of your loved ones, you should have a Will, a Representation Agreement and a Power of Attorney.
Last Will and Testament
One of the most important aspects of a Will is the appointment of your executor – the person who administers your estate according to your wishes. This role includes safeguarding your property and distributing the proceeds of your estate to your beneficiaries. A Will determines who, in part, looks after your assets, pays your bills and is entitled to receive the assets of your estate. Without a Will, your estate is left to the whims of the rules set out in the Wills, Estates and Succession Act. Under that Act, if you have a spouse but no children, your estate passes to your spouse. The definition of spouse includes a person that you have been living with in a marriage-like relationship for at least the last two years. However, if you have a spouse and children, your children may get to share in your estate. It becomes complicated if your children are minors, given that the consideration of who will be their guardian will have to be addressed. If you do not have a spouse or children, someone will have to step in to administer your estate and determine who your beneficiaries will be based solely on what the Act prescribes. If you want your estate distributed in accordance with your wishes, you must have a Will.
A Will takes effect after you pass away. However, what happens if you are still alive, but you are no longer capable of handling your own legal affairs, finances or health care decisions?
With the preparation of a Representation Agreement, or a ‘Living Will,’ you can appoint someone to be your decision-maker for health care decisions. Your representative will only make decisions for your benefit when you are unable to do so. In such a case, you will want to appoint someone you trust to make reasonable choices regarding your health care. You should discuss your health care preferences with your representative well in advance, so that he or she has an understanding of the care and accommodation decisions that you prefer.
In many cases, your representative will be a spouse or close family member. In addition, there is provision in the legislation for the appointment of a “monitor” to review the representative’s conduct and ensure that the representative lives up to his or her duties. A monitor is not mandatory and in close family situations is frequently not appointed. A Representation Agreement automatically ceases once you pass away.
If you do not have a Representation Agreement, in the event that you are incapable of making your own health care decisions, your medical team will typically contact your spouse or close family for a decision on your treatment. However, if you have not appointed a representative and do not have family to assist with those decisions, the Public Guardian and Trustee will step in to dictate your care, treatment, accommodation, and so forth, all at the expense of your estate, and with no advance knowledge of your preferences for care.
Powers of Attorney
With the preparation of a Power of Attorney, you can appoint another person as your attorney to deal with your assets and make financial and legal decisions on your behalf. Unlike with a Representation Agreement, a Power of Attorney can take effect when you are still capable of making your own decisions.
A Power of Attorney can be as general or as specific as you like. For instance, if you will be traveling for a certain period of time, you can appoint an attorney to deal with your bank accounts only during that specific time. Alternatively, you can appoint someone for an unlimited period of time to administer all of your finances, assets and real estate, and have full signing authority on your behalf. Your attorney’s rights and powers can continue even if you become mentally incompetent. In that case, your Power of Attorney becomes an “Enduring Power of Attorney,” since your attorney continues to be able to act even though you may not have the power to make your own decisions. However, only a Representation Agreement can give authority for someone to act on your behalf for health care and personal care matters.
As with the appointment of a representative, it is important to carefully consider who you will appoint as your attorney. Your attorney can have significant power over your assets and finances. Typically, a spouse or another close family member is appointed. If required, more than one person may be appointed as your attorney, to act jointly or separately as needed. A Power of Attorney automatically ceases on your death or if you become bankrupt.
In the event that you do not have a Power of Attorney and you lose mental capacity, the Public Guardian and Trustee takes over the administration of your affairs. Alternatively, someone else, such as a family member, may apply to the Court to be appointed as your “committee” to look after your assets. However, an application for the appointment of a committee is expensive – far more expensive than preparing a proper Power of Attorney while you are still able.
Ultimately, you should ask yourself whether you want to make it easier for your loved ones by planning ahead and having your estate documents in place.
The best practice is to properly prepare and sign (in the presence of the necessary witnesses) a formal Will, Representation Agreement and Power of Attorney in compliance with all legal requirements. You should review your estate planning documents every two years or so, and update them as needed. Your Will deals with matters upon your death, while the Power of Attorney and Representation Agreement address potential difficulties that may arise while you are still alive. Failure to have any of these estate planning documents in place could mean that strangers or the government will be able to make very personal decisions on your behalf, without taking your preferences into account.