Estate & Elder Law
What is a Will?
A will is your written instructions on how to deal with your estate after your demise. The purpose of a will is to provide for the orderly distribution of your assets at your death.
Do I need a Will?
There are many reasons to have a will:
- If you do not have a will, you cannot select the executor who will administer your estate, and the person to fill this role will be appointed by the court.
- If you do not have a will, you cannot select the beneficiaries of your estate. Provincial legislation dictates who will inherit. For example, if you have a common law spouse or same-sex partner, he or she will not be considered your spouse for division of your assets.
- If you do not have a will and your children are under 18, the children’s shares are paid to the court, to be held until the children attain age 18. The children will take their shares at age 18 whether or not they are mature enough to manage them. Without a will, there is no flexibility to set up trusts for children or to consider any special needs of family members.
- A properly written will may result in increased tax savings, both at the time of your death and following your death, which would not be available without a will.
- Passing on ‘intestate’ (i.e. you have no will) will cause problems for the loved ones you leave behind, those people who need to administer your estate after you have shuffled off this mortal coil.
What is a trust?
Succinctly stated, a trust is a relationship whereby property is held by one party for the benefit of another. A Trustee holds the property for the trust’s beneficiaries.
Trusts are frequently created in wills, defining how money and property will be handled for children or other beneficiaries. An individual would be interested in creating a trust when he or she has children under the age of majority (who cannot inherit directly until attaining 18 years of age) or when there are concerns that an immediate distribution to beneficiaries is not in the best interest of the estate and the beneficiaries.
- A surviving spouse may not be able to manage the estate without assistance;
- A parent may feel that, at age 18, a child may not be mature enough to handle a large sum of money.
When you create a trust in your will, you direct your executors to hold your estate, or part of it, in trust for the beneficiary or beneficiaries. It is quite common to provide in a will that a child’s share is to be held for his or her benefit until the child attains a certain age, and to give the executors the discretion to use the funds being held in trust for the benefit of the child until he or she attains that age. It is also common to provide for a staged distribution of the child’s share. For example, a part may be paid at age 21 and the balance at age 30. Until the child reaches age 30, the executors will have some control over the child’s interest in the parent’s estate.
Many factors must be taken into account when you are deciding whether or not to establish a trust or trusts under your will. These factors include the size of your estate, the ages of your beneficiaries and how responsible they are, and any special needs, such as medical or educational, which a beneficiary may have.
A power of attorney
is a written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal.
In Ontario, we have two powers of attorney: a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care (often referred to as a ‘living will’). While a will is your instructions after your demise, powers of attorney are your instructions while you are still alive but are for whatever reason incapable of acting for yourself.
The main reason to have powers of attorney is to ensure that upon the grantor's incapacity, the person the grantor appointed as the attorney would act on behalf of the grantor; otherwise the Ontario Government will in effect become the attorney. Your family and loved ones will undoubtedly suffer heartache if you become incapacitated; they will most likely suffer headache as well, due to administrative and bureaucratic obstacles they will encounter if you do not have valid powers of attorney,
Regardless of age or health, powers of attorney are inexpensive, simple documents that can save your family and friends a lot of grief—a worthwhile investment.
FAQs about Powers of Attorney
How long is a power of attorney valid?
A power of attorney is valid until you replace it with a new power of attorney. The grantor is permitted to change powers of attorney at any point, as long as the grantor still has the mental capacity to do so. If, for example, a grantor succumbs to dementia, and it is deemed that the grantor no longer has the capacity to made competent decisions, then the power of attorney cannot be changed without great difficulty.
Can I have more than one power of attorney?
Yes, you can have two or more people as your powers of attorney. Care should be taken, however, to choose individuals who are unlikely to disagree about what your wishes would be if you were capable of making your own decisions.
Who can I appoint to be my power of attorney?
You can choose anybody you wish—a spouse, a different family member, a close friend—as long as the chosen individual is over eighteen years of age. It should go without saying that the person you choose should be somebody you trust implicitly, somebody you know will do what you would have done if you were capable of acting for yourself.
What is Elder Law?
In a nutshell, Elder Law deals with protecting the rights of elderly people. Elder Law is a complex field dealing with many different statutes and regulations. Furthermore, there are potentially a plethora of situations wherein elderly people might feel their rights have been infringed and require protection.
Just for example:
- They are the victim of 'elder abuse' at the hands of either family members, friends or strangers. Abuse can be not only physical but psychological or financial in nature;
- There has been a misuse of an elder's power of attorney, or an elder has been unduly influenced or pressured to designate someone as a power of attorney;
- There has been undue pressure or influence placed on an elder with respect to the elder's will;
- There is an issue as to the elder's 'capacity' to create a will or powers of attorney;
- An elder's rights, as outlined in the Long-Term Care Homes Act, are being infringed by the care facility in which the elder resides.
Elder Law is a burgeoning field. This is not surprising given the demographics of our society. As our society ages, elder law issues—eg. misuse of powers of attorney, undue influence with respect to wills and powers of attorney, long-term care arrangements, etc.—will proliferate. This area of law will also take on increased prominence as we as a society change our thinking about the elderly. As a society, we must think of the aged as an asset as opposed to a liability. We must respect and admire the wisdom that only life experience can bring. At the same time, we must think of old age—and as corollary, the infirmities often accompanying old age—in terms of a disability and accord to older people the same reasonable accommodations we do for other disabilities.