While your Will names an Executor who will handle the administration of your estate after you die, a Power of Attorney is a document that appoints another person to handle your affairs, including making important decisions about your healthcare, finances, and/or property in the event that you are incapacitated or incompetent. You typically write these documents at a time when you have full capacity, to come into effect if you were ever to lose capacity.
We have written extensively on the importance of a Financial Power of Attorney in other blog articles. It is a critical document no matter what your family situation happens to be.
Unlike Wills, which are generally recognized throughout Canada regardless of the province in which they were drafted, the law regarding Powers of Attorney can differ quite a bit between provinces. This means there is no such thing as a “Canadian Power of Attorney for Finances” or “Canadian Power of Attorney for Healthcare.” Instead, these documents may have different names, and different legal requirements for validity, depending on your province of residence. This article will attempt to explain some of these differences, and how LegalWills.ca simplifies the process of creating a new Power of Attorney for every province in which you hold assets.
Powers of Attorney and Healthcare Proxies
As explained in our article about essential estate planning documents, a Financial Power of Attorney gives someone else authority to make decisions about things like whether to sell your home, manage your investments, pay your bills, and file your taxes on your behalf while you are incapacitated. Depending on how it is drafted, a Power of Attorney can be specific, for example limited to certain property (like your home or investment portfolio), or general, permitting complete control over your finances.
Generally a Power of Attorney written to cover a specific asset is put in place when you are unavailable rather than incapacitated. For example, if you are travelling overseas and you need somebody to sell your car on your behalf, you can do this with a specific Power of Attorney. For the purposes of estate planning, a Power of Attorney is usually a “General” Power of Attorney which says “if I was to ever lose capacity, I would like this person to take control of my financial affairs for me.”
Completing your Will is an important step, but it is not the only thing that needs to be done to get your affairs in order. Working through the suggestions below will not only help you organize all of your assets, but will also ensure a smooth process for your surviving loved ones.
Store Your Will and Be Sure That Your Executor Knows Where it is Stored
Once you have signed your Will in the presence of two witnesses, who in turn sign the document, it is a legal Last Will and Testament. At this point, you simply need to store the document in a place that is known and accessible to your Executor.
Your Executor is the only person who needs access to the Will. You do not need to share the document with your beneficiaries or family members. Some people simply give the Will to their Executor (or alternate Executor) for safe keeping in a sealed envelope.
There is no requirement to store the Will with any particular registry, and there is no requirement to register the document with any court or government department (this is done after you have died).
Your Will is a document that can be updated throughout your lifetime. Any time you make a change to your Will, you should sign the new document in the presence of witnesses. Ideally, any older Will should be destroyed, although this is not a requirement. Your most recently signed and dated Will is your “Last” Will and Testament and the only one that is active (assuming that it meets the legal requirements for a Will).
At LegalWills.ca we provide the tools for all key “estate planning” documents. These include a Last Will and Testament, Financial Power of Attorney, and “Living Will”. According to leading medical practitioners, one key document is missing – a document that describes the medical treatment you wish to receive if you have a serious illness. Not an “end-of-life” document, Advance Serious Illness Planning.
We met with Dr Daren Heyland of Queens University. He has created the Plan Well Guide, and kindly agreed to write a guest article for us.
Advance Serious Illness Planning (ASIP): A conversation with a critical care doctor
Disclaimer: This article is using the Duke and Duchess of Sussex as an illustration of a widely experienced situation. We are not suggesting that Prince Harry and Meghan Markle use our service; it would be up to them to decide whether the Expat Will service at LegalWills.ca is a good fit for them. We have certainly seen people with wealth, surrounded by a legal team, write their own Will, or even die without a Will. But each individual would need to decide the best approach for themselves. We refer to them as “Harry and Meghan” in the article, but it could be anybody.
Disclaimer 2: This article is not legal advice. It is presented as general information which may or may not apply to your own personal situation.
You have probably heard by now, the Duke and Duchess of Sussex are moving from the UK to Canada. There is a chance that they may buy property in Canada. Prince Harry is a UK citizen. Meghan Markle is an American citizen. Their son, Archie, is probably dual citizen UK and US, now being raised in Canada.
What does this all mean for their estate planning?
Explanation of the answers
This was a tough quiz covering estate planning in Canada. In this article we will provide you with some explanations for our answers.
A Financial Power of Attorney appoints somebody to take care of your financial affairs while you are alive, but usually after you have lost capacity.
This document should not be confused with either a Last Will and Testament (or simply a “Will”) or a Living Will.
A Last Will and Testament makes key appointments and describes the distribution of your estate after you have died.
A Living Will is a document that is also in effect while you are alive, but deals only with your health condition and medical treatment. It usually combines the naming of a Healthcare Proxy with an expression of the type of treatment you wish to receive through an Advance Directive.
Together, these three documents make up a complete Estate Plan in Canada.
What types of Power of Attorney are there?
The first classification is the Power of Attorney that directs your medical needs; a Healthcare Power of Attorney. Also known as a Healthcare proxy. In this document, you name a person to make medical decisions on your behalf. Most people when they talk about a Power of Attorney are not meaning a Healthcare document.
What is the purpose of a Will?
Your Last Will and Testament allows you to speak after you have passed away. It does absolutely nothing and has no powers whatsoever all the time you are alive. But as soon as you die your Will has two key functions: it allows you to make key appointments and it allows you to describe the distribution of your assets. These assets include money, possessions, houses, investments, everything that you own. Making a Will is one of the most important responsibilities of every adult, and it should not be put off until a distant day in the future when you are “old”.
You should not think of making a Will as a once-in-a-lifetime event. You should always have a Will in place that reflects your current situation. You should write your first Will as soon as you are an adult, and then update it throughout your life as your circumstances change.
Your Key Appointments
By Making a Will you can make two key appointments.
This is the person you entrust to carry out the instructions in your Will. They have the responsibility to arrange your funeral, gather and secure your assets, and then distribute them according to the instructions in the Will. It is a very important appointment. Continue reading
At LegalWills.ca we offer a complete set of estate planning services which include the Last Will and Testament, the financial Power of Attorney, and what we have been calling the “Living Will”. Our Living Will service typically includes a Healthcare Power of Attorney, that allows you to appoint a person to make medical decisions on your behalf (a Healthcare Proxy). And also a Healthcare Directive that allows you to express the type of healthcare you wish to receive if you were ever unable to speak for yourself. We collectively call all of these documents your “Advance Directives”.
We received an email from Pashta MaryMoon the Director of CINDEA – Canadian Integrative Network for Death Education and Alternatives. She expressed concern that we were using the term “Living Will” when it is not a widely used term in Canada and has been borrowed from the US.
After discussions we felt that it would be a great opportunity for Pashta to share with our community the correct use of terminology for Advance Care. The rest of this article is a guest post from Pashta MaryMoon from CINDEA.
Writing your Will can be a very simple process, but because it is only done a few times in your life, it can be intimidating. It can seem daunting because there are so many unfamiliar terms used in the estate planning world. Expressions that are second nature to the legal community, but are not in everyday use for the rest of us. Before you make a Will, it is important to familiarize yourself with some of the more common expressions.
Just because the terms are unfamiliar, they are not complicated concepts. In this article we will explain a few of the words that you will need to know before you make a Will. We hope that we can demystified the process a little.
The term intestate is typical of much of the legal language in that it is derived from Latin, and in today’s World it means that you have died without a Will. Continue reading
Everybody needs a Last Will and Testament, but does everybody need a Canadian Living Will? We are asked this question a lot, and the answer is not always clear. Everybody should prepare a Living Will, but not every Living Will is going to be used. Most people will never find themselves in a situation where they need a Living Will, but if you are ever in that situation, it is a vital document, but by then it is too late.
According to a 2014 Harris/Decima poll, although nearly all Canadians (96%) believe it is important to have a conversation Continue reading