Wills and Powers of Attorney
Wills and Powers of Attorney are all about appointing someone else to handle matters for you when you can't. A Will only becomes effective when you die. A Power of Attorney can be effective immediately, or if you direct it, only when you are incapable.
Should you have these documents? In a word, YES!
Remember, and this is important, when something occurs that alters the relationship you have with people you appointed as your representative(s) or made a beneficiary, REVIEW your Will and Powers of Attorney. Your lawyer cannot keep tabs on everyone! It is your family! They are your friends! You know your life circumstances better than anyone else. DISCUSS the changes with your lawyer. He/She will advise of the effect any changes could have on your affairs. It will then be up to YOU to determine if changes to your documents are needed. If YOU don't do it, it won't get done!
Unless you appoint someone to be your executor (now Estate Trustee) in your Last Will and Testament, a Court will have to approve someone. Unless you pick an Attorney to act on your behalf during your incompetency, the Public Trustee will become involved. A lot of people just assume that their husband or wife would take over - NOT SO! You must have appointed your Attorney. If you haven't, your spouse won't have any authority unless he or she spends a portion of what you have applying to Court to get it! While the Court application is not difficult, it is time consuming and, more often than not, expensive.
Did you know?
Wills have not always been the private matters we consider them now. Roman law required that you read your will in the marketplace in the presence of no less then five witnesses, after which you couldn't change it!
Nowadays anyone who is mentally competent and over the age of majority can write a Last Will and Testament. The Will is best reviewed every three years or so. Change it if the effect or result is not what you would like to see based on family dynamics and any changes such as birth, deaths, marriages, separations/divorces.
The person you pick to act on your behalf of your estate is your Estate Trustee, or Executor. You can have more than one executor, but all of the persons you choose may have to act together on all the details of your estate. It is not recommended, but Diefenbaker had eleven executors!
We normally suggest you pick a family member as your executor. Your executor can and is encouraged to claim up to 5% (now likely 6%) of the value of your estate as compensation, and unless it is a complicated estate, you would be better off notgiving that to a bank or lawyer. For much less, either would be happy to advise your executor.
CHALLENGING A WILL
A competent person can generally leave their assets to whomever they wish, but they cannot cut out or inadequately provide for their spouse or dependent children. If they do, the will can be challenged and the estate will likely be ordered to provide for the spouse and children to some extent.
Wills can also be challenged if the writer was incompetent or under undue pressure. These are difficult allegations to prove. The fact a beneficiary does not like the contents of a Will is not enough. It is the deceased's last wishes that count as expressed in the Will. People can and do have peculiar likes and dislikes and where better to vent them than in your Will.
Before writing a Will or a Power of Attorney for an elderly person, a lawyer will want to assure that the client understands the nature of his own assets and his normal family expectations. In some cases, the lawyer will want to have a letter from a doctor confirming competency.
POWERS OF ATTORNEY
If, due to illness, age or even just absence, you want to allow someone else to act on your behalf, you should appoint that person or those persons as your "Attorney(s)". When picking two attorneys, you should decide if they are to act togther (Jointly) or whether they can act together or separately (Jointly and severally) for convenience. Pick wisely because you are certainly giving them a lot of power of your affairs! Although it may be criminal, it is not unheard of for an Attorney to misuse funds.
For your financial matters, you should sign a "Property Power of Attorney". For your health and medical matters, you sign a separate document called a "Personal Care Power of Attorney." Often people like to include a "merciful death" clause or a "Living Will" in their Personal Care Power of Attorney.
I am often asked about the Will/Power of Attorney kits. They are likely fine for simple, straight forward estates. However, there are many important issues not totally explained in many of the forms out there. Some of these issues include the mental ability of the person completing the document, the importance of an affidavit from one of the witnesses, how to adequately deal with blended families, etc. Please check with your lawyer before completing one of the more important documents for yourself and your family.
Always remember that you get what you pay for!!! A colleague of mine once said to a client who had expressed concern about the cost of these documents that the client could pay for groceries for a week to properly prepare the documents but, if there was a contest to the document prepared by the client, the cost would likely cover a nice all expenses paid trip for a week or two for the lawyer. While lawyers properly deserve the fees they charge, and most undercharge for these documents, is it not better to ensure your family has the fewest hassels possible rather than save a few dollars?