I am seriously injured in an accident and cannot manage my affairs. Who will?

July 11, 2011 / Category: Frequently Asked Questions

A power of attorney is essential to ensuring your decisions are made by a person of your choosing otherwise the government will make the decisions for you!

An enduring Power of Attorney may save substantial time and money in the event of incapacity or an extended time away from home. A Power of Attorney is a simple document that allows someone else to administer some or all of your affairs during your lifetime. It can become effective now or only in the event of incapacity such as a car accident, can be limited to only dealing with certain assets and can provide alternate attorneys. A bank power of attorney only deals with assets at that institution. Most people should take this simple precaution in this very complex and hurried environment in which we live. Failure to have a Power of Attorney could result in a costly court application to administer such person’s affairs. You can protect yourself by requiring that two people act together as your attorney. You do not want the Government or the Public Guardian and Trustee in your affairs.

If you have become incapacitated (that is unable to make your own decisions), it will be very expensive to have the court appoint a power of attorney. Therefore, it is always best to prepare your power of attorney now while you have capacity to do so.

In ensuring you have a power of attorney I recommend you also have a complete estate protection and also complete a will.

Some of the benefits of making a Will include the ability to direct where your assets will go, the cost and time savings of dispensing with an administration bond and the speed in distributing assets to the beneficiaries, pay debts and fully administer the estate. Each in itself is a valid reason for having a Will prepared at this time.

If you decide to prepare a Will, the chances are it will be relatively uncomplicated. In order to instruct a lawyer to prepare a simple Will, you must be able to answer the following questions:

Who will be the executor and, in the event of that persons death, incapacity or unwillingness to act, alternative executor?

In other words, who do you want to hold or distribute your assets in accordance with the wishes set out in your Will? Who will make funeral arrangements and pay your debts? It should be somebody that you trust. That person should know enough about you to know what assets you have and what debts you may owe. Typically, your spouse would be the first choice as executor. A second choice might be a responsible child over the age of eighteen. Other family members might be considered as well. Unless your estate is complicated, you will not require the services of a trust company to act as a corporate executor. Keep in mind that your executor can administer your estate faster if he or she is located close at hand. An executor in Vancouver will not be able to administer the estate as quickly as an executor in Ontario if your assets are located solely in Ontario. Also, remember that if an executor is resident out of Canada, it may be necessary for that person to post an insurance bond with the court incurring further expense to the estate.

Are there any special bequests (gifts) that you want to make?

These might be family heirlooms which are to be passed down from one generation to another. It may be specific donations to charities. Generally you should avoid too many gifts of furnishings and the like. People tend to have changes of heart about one person or another and such chattels disappear or depreciate from time to time thereby necessitating Will changes and additional cost.

Your choice for the residue of your estate and the alternate if such person predeceases you.

The first choice would likely be your spouse. If your spouse has passed away, you might want to indicate that the estate is to be divided equally between your children. It is not necessary to name the children specifically unless not all the children are to receive equal treatment. Are grandchildren to receive the parents share if a child dies?

If young children are potential beneficiaries, do you want the money held in trust until they reach a certain age, and what if they die before yourself or such age?

Most people do not want young children receiving substantial sums of money until they are old enough to handle the money responsibly. The most common ages used in Wills are eighteen and twenty-one years of age.

Tie up loose ends.

It is essential to make sure that you do not create trusts and then have nowhere for the money to go if the beneficiary of that trust should die. Consider the situations that might occur. What happens if you do not have a child or a grandchild alive at your death? What happens if one child dies leaving children and a spouse? Or a spouse and no children? Or no spouse and no children? In the final paragraph of the Will disposing of your assets, you should indicate how you wish to deal with these situations.

Marriage or re-marriage in most instances revokes a previous Will. If there is no Will, all assets are frozen until an administrator is appointed. Charities or a favorite friend will not receive anything without a Will. A Will can ensure your assets are distributed according to your desires and make things easier and cheaper for your family.

Call Stayshyn Law Offices to have a free consultation with our personal injury legal team of lawyers today so that we may help guide you through the many mine fields that an injured victim will face in any injury case.