Everyone should have a properly drawn Last Will and Testament, Power of Attorney for Personal Care and a Power of Attorney for Property. These should be reviewed at least every 5 years and especially when you retire, they should be reviewed and updated as necessary every year.
Can you explain what these documents are and what they should contain?
Let us start with the Will. The first thing is to make sure that it is properly drawn, preferably by a lawyer who specializes in wills and estates. You must name the executor(s) for the Will.
They are the people who will do whatever is set down by you, your final wishes and your bequests to individuals or gifts to charities. The executors take physical possession of all your assets, bank accounts, investment accounts and even safety deposit box keys. The executors are obliged to follow your instructions and it is their responsibility to also pay any outstanding debts that you have owing at the time of your demise.
You can name anyone as your executor and my preference is to name three with your spouse or significant other being one of them. They vote with majority ruling but you should make sure that your spouse or significant other is part of the majority; but if your marriage is shaky or it is a 2nd or 3rd marriage, I would seek legal counsel before going forward.
They are the people who will do whatever is set down by you, your final wishes and your bequests to individuals or gifts to charities. The executors take physical possession of all your assets, bank accounts, investment accounts and even safety deposit box keys. The executors are obliged to follow your instructions and it is their responsibility to also pay any outstanding debts that you have owing at the time of your demise.
You can name anyone as your executor and my preference is to name three with your spouse or significant other being one of them. They vote with majority ruling but you should make sure that your spouse or significant other is part of the majority; but if your marriage is shaky or it is a 2nd or 3rd marriage, I would seek legal counsel before going forward.
Your executors together with the estate lawyer then draw up the application for probate, pay the necessary probate fees and file the forms. All beneficiaries are notified of their entitlement and then the FUN BEGINS. There too often seems to be greedy or resentful relatives who have nasty lawyers to contest the Will.
One way that this may be overcome is to insert a clause in the will that states that anyone who commences an action with respect to the will is automatically cut out of their share of the estate. As I say, it sometimes works but you had best check with an estate lawyer.
Executors are entitled to be paid fees for their services and the amount of these fees is set down by regulation. The usual amount in Ontario is 5% of the total asset value of the estate. There are also fees based upon the work done administering those assets while under the custody and control of the executors.
The Power of Attorney for Personal Care must have a trustee to act on your behalf. This person can be same person whom you named as the executor of your will. suggest that you appoint a person who is intimately connected with you and knows your health and personal concerns. I suggest that you appoint a person who is intimately connected with you and knows your health and personal concerns..
You may wish to appoint a substitute decision maker to carry out your wishes contained in this document in the event the first party is unable or unwilling to act. Your wife or significant other may be your substitute. YOU CANNOT APPOINT YOUR PERSONAL PHYSICIAN.
This Power of Attorney for Personal Care comes into force when you are declared incapable of looking after your own health care needs.
In the document – or it can be on tape or through verbal communication -You should state your wishes clearly for example, if your condition is critical or terminal, outline whether you wish to be resuscitated or not; or if you wish hospice care. , DO NOT USE ‘No heroics to be done by doctors or nurses. These words are too vague to be helpful.
You can go so far as to name those you do not wish to visit you in hospital or home, even those you do not wish to attend your funeral.
Either in this document or in your will, you can set out your wishes for a funeral and all its attendant matters.
The Power of Attorney for Property comes into force when you and your chosen POA sign the document or when you become unable to look after your financial affairs yourself. You may appoint one or more trustees; you need have only one, a second person can be named as an alternative. Your POA will have signing authority on all documents because that person is acting as if they are you in every capacity. They have complete control over those of your assets you designate once this document comes into force. So be very careful as to whom you appoint. The wrong person could bankrupt you.
As in the other two documents previously mentioned these trustees are entitled to be paid but that decision is up to you.
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