Our objective is to educate the public on the importance of drafting a Will and Power of Attorneys, while they still have testamentary capacity. We spend our lifetime building our assets and investments, so why not draft a document to protect all that hard work for the future generation.
What is a Will?
A Will is a formal contract made by a testator, where they outline who they wish their estate to pass to in the event of their death. The Will is only enforceable once the testator dies. During their lifetime, the Will must be kept in a safe, fireproof facility, in order to prevent any damage to the document. The Will must only be changed by a lawyer, and should never be written on. Should there be any changes to the circumstances in the Will, it is always recommended to have the Will amended.
The testator must have testamentary capacity at the time of signing the Will, which is why it is best to have the Will drafted as soon as possible to avoid any incapacities that may come with time. More than half of Canadians do not have formal Wills, leaving hardship for their loved ones, once they are gone. Dying without a Will leaves little to no room to decide how your estate is divided, as disposition will be subject to the general rules provided by the Government. The Estate Trustee, also known as the Executor, can be anyone over 18 with mental capacity, but can also be someone outside the country. For practical reasons, we suggest you choose someone who can readily come to Canada, should the Will need execution. The Beneficiary can be anyone with any age or mental capacity. A beneficial trust or a charitable contributions can also be options.
What is a Power of Attorney?
A Power of Attorney is also known as a living will. They are formal contracts that are enforceable while the Donor is alive but either unavailable or incapacitated. The document enables the named attorney to make decisions about the donor’s property and health care needs. This named Attorney can be anyone over the age of 18 with the requisite mental capacity. We always suggest carefully discussing who you wish to choose with your legal counsel in order to avoid any contentious issues that may arise.
The Two Kinds: Power of Attorney for Property & Power of Attorney for Personal Care
As their names imply, the former deals with all property owned by the Donor, this includes real and personal property. It enables to the Attorney to do what is required to manage, sell or purchase these assets. The latter allows the named Attorney to make decisions with respect to the Donor’s health care needs, including consulting their relevant medical practitioners.
Natalie Hamzeh, LL.B. LL.M. https://thelawboutique.ca/