Difficult decisions you should make
To be certain that your legacy is passed on exactly as you wish and that your expectations for personal care are known at a time when you may not be able to make those determinations for yourself, there are certain decisions you should make now.
A comprehensive estate plan starts with your will but should also include other elements. Among the most important are a power of attorney for property and a power of attorney for personal care. Here’s why.
Power of attorney for property
Your will establishes who will receive your property after you die. It also includes the name of the person you have selected to be your executor (or personal representative) – the person who will be legally responsible for carrying out your wishes as set out in your will.
But what happens if you become incapacitated prior to your death? Your will has no effect in that case – so you need another form of protection and direction – and that’s what a power of attorney for property does. You select your attorney for property (it can be the person you named as executor or someone else) who will act on your behalf in respect of your finances.
The powers granted to an attorney for property vary according to your province/territory and the terms of the document. They generally include paying your bills, managing your real estate and other investments, filing your tax returns and paying your taxes, signing documents on your behalf, mortgaging or selling your home, and managing your accounts, safety deposit boxes and other banking needs.
Power of attorney for personal care
Sometimes called a health care proxy, a health care directive, or living will, your power of attorney for personal care is your substitute decision maker for your wishes regarding your future health or medical care including giving or refusing consent to treatments such as saying yes or no to life support treatment that would artificially sustain or prolong life.
Most provinces now have legislation allowing the designation of a power of attorney for personal care, but not all provide that the decisions of the proxy are binding. Even in jurisdictions where the decisions of the proxy are binding, it can be overridden by certain circumstances such as medical or technological advances that render an instruction inappropriate.
You should draft your powers of attorney very carefully, in accordance with your precise wishes and provincial/territorial legislation. Include your lawyer in their preparation – and your family physician for your living will. Make your professional advisor a part of your team – the quarterback who will make sure all your estate planning strategies make sense for you.
July 15, 2015