Wills and Powers of Attorney
Estate planning is a very important area of law covered by our clinic. Specifically, we assist clients with wills and powers of attorney – two common tools used in estate planning. Estate planning involves the transfer or someone’s assets (like money, or property, for example) when they die, as well as a variety of other personal matters. We can also assist clients with important information about what to do when a person dies as well as dealing with inheritances while in receipt of social assistance (ODSP OW).
What is a will?
A person’s will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after a person dies. It only takes effect when the person dies.
In a will, you will appoint an executor or executors. This is the person(s) you elect to be ‘in charge’ of your estate when you die. The executor(s) will carry out your instructions and make sure your estate is managed according to your wishes.
In a will, you will also appoint a beneficiary or beneficiaries. Beneficiaries are those persons who will inherit a share in the residue of your estate after all debts have been paid.
If you have minor children (under 18 years of age) at the time of drafting your will, you will also appoint guardian(s) to your child(ren). The guardian(s) you appoint are those that will be in charge of the immediate care of your minor child(ren) after your death. They then will have to apply to the court to obtain legal custody. Appointing guardian(s) for your children shows the court your intentions about custody and is a very important step in estate planning.
Executing a will makes clear your intentions on your death. If you die without a will, this is called ‘dying intestate’ and can complicate things. Dying intestate means that you left no instructions as to how your property is to be divided and distributed. In these circumstances, the Ontario Succession Law Reform Act governs how your property will be distributed to your surviving relatives. Even if you want your property divided according to provincial law, you should still have a Will because it will reduce delays and expenses involved in wrapping up your affairs.
What is a power of attorney?
A Power of Attorney is a legal document in which you give someone you trust (called your “attorney”) the right to make decisions for you if something happens and you are no longer able to look after matters on your own.
There are two types of Power of Attorney:
Power of Attorney for Personal Care – the person you name can make decisions about your health care, housing and other aspects of your personal life (such as meals and clothing) if you become mentally incapable of making these decisions.
Power of Attorney for Property – the person you name can make decisions about your financial affairs (including paying your bills, collecting money owed to you, maintaining or selling your house, or managing your investments).
You don’t have to create a power of attorney. But if something happens to you and you don’t have one, other arrangements will have to be made. A family member may have the right to make certain personal care decisions, and can apply to become the guardian of your property. Alternatively, someone else — like a close friend — could apply to the court to be authorized to act for you.