Wills/Powers of Attorney
Estate Planning:
Estate planning involves the transfer of a person’s assets on his or her death, but the practice of estate planning involves making plans to transfer one’s assets prior to or on death as efficiently as possible, as well as making arrangements to give others decision-making authority in the event of compromised health or other circumstances. Wills, trusts and power of attorney agreements are all common legal documents used in estate planning.
Wills:
A will is a written, legal document that provides a person’s wishes about how his or her estate should be distributed after his or her death.
An estate consists of the sum of an individual’s legally-owned assets on death, less any liabilities (such as debt and taxes). Assets in the estate may consist of legal rights, interests and entitlements to property of any kind, such as real estate, cars, licences, stocks and/or art work. A person’s estate is divided amongst the beneficiaries named in his or her will.
When an individual dies without a will, this is referred to as intestacy or dying intestate. Without a will, an individual’s estate passes according to rules made by the government, which distribute the estate to dependents and next-of-kin. In rare cases, an estate can escheat to the government when an individual has no family.
Powers of Attorney:
A power of attorney is a legal document that gives someone else the authority to act for and make decisions on your behalf.
In Ontario, there are three kinds of powers of attorney:
- A Continuing Power of Attorney for Property (CPOA), which covers financial arrangements and allows the person you name as your attorney to act for you and on your behalf even if you become mentally incapable.
- A non-continuing Power of Attorney for Property, which also covers financial arrangements but it cannot be used if you become mentally incapable. This Power of Attorney is commonly used if someone requires the named attorney to manage their financial affairs while they are out of the country for a significant period of time.
- A Power of Attorney for Personal Care (POAPC), which covers one’s personal decisions, such as housing and health care.
It is important to note that the term “attorney” denotes the person or persons you have chosen to act for you. This person need not be a lawyer.
In addition to a power of attorney agreement, you may also consider obtaining a Living Will/Health Care Directive which can provide detailed instructions about your health care wishes in various circumstances, if you become unable to communicate.
As you are separating from your spouse, you should update your estate plan to make sure that it reflects your current life and wishes. Please speak to us about updating your will and/or power(s) of attorney as part of your separation process.