There are two main reasons to have wills and estates documents – to have your wishes carried out and to avoid the difficulties for your loved ones of having to deal with your affairs without a Will.
It can be difficult to think about your own passing. It can also feel overwhelming to have to make decisions now for a future that feels uncertain. The help of a lawyer to guide you through the process and point out what to consider and your options makes the process a lot easier.
You should also think about having a Personal Directive and Power of Attorney.
A Personal Directive is a legal document in which you appoint someone to make personal decisions for you, if you don’t have the capacity to do so.
The Personal Directives Act governs Personal Directives.
Under the Act, capacity means “the ability to understand the information that is relevant to the making of a personal decision and the ability to appreciate the reasonably foreseeable consequences of the decision”. Unless your Personal Directive says otherwise, your doctor determines capacity and is captured in writing.
Your Agent is the person who makes decisions on your behalf. Your Agent can make decisions on most personal matters, like your medical treatment. You can include detailed instructions in your Personal Directive, that your Agent must follow.
If you do not leave your Agent clear instructions, they must make decisions that they believe you would make in the circumstances, based on their knowledge of your wishes, beliefs and values. If they don’t know what your wishes, beliefs and values are, they must make decisions that they believe are in your best interests.
A Personal Directive must be in writing, dated and signed by you, in the presence of a witness.
There are many other considerations that we will talk to you about regarding your Personal Directive.
A Power of Attorney is a legal document in which you appoint someone to make financial and legal decisions on your behalf. Their power can take effect when you don’t have capacity to make decisions for yourself.
Powers of Attorney Act governs Power of Attorneys.
Unless your Power of Attorney says otherwise, your doctor determines capacity and then is captured in writing.
Your Attorney makes decisions on your behalf. You can decide what powers you give your Attorney. You can include detailed instructions in your Power of Attorney, that your Attorney must follow.
If you don’t limit their powers, they will have the authority to do anything on your behalf that you may lawfully do by an Attorney, and may exercise their authority for the maintenance, education, benefit and advancement of your spouse, adult interdependent partner, and dependent children.
A Power of Attorney must be in writing, dated and signed by you, in the presence of a witness.
There are many other considerations that we will talk to you about regarding your Power of Attorney.
After separation, writing or updating your Will, Personal Directive and Power of Attorney are especially important.
Reviewing or drafting a new Will, Personal Directive and Power of Attorney is important at the time of your separation. If you have a Will in place with your spouse listed as your Executor/Trustee and/or the beneficiary of your estate, that Will will continue to be in effect even after you have separated from your spouse.
You can draft a new Will during the period of separation that is effective even after a divorce. Your new Will can designate an Executor/Trustee other than your spouse and a new beneficiary of your estate.
If your spouse is your Agent under your current Personal Directive or your Attorney, under your Power of Attorney, you may wish to appoint a someone else in those roles.
When you separate, revisit your beneficiary designations on your RRSPs, investments and insurance policies to ensure they reflect your wishes.
The beneficiaries you last listed on your RRSPs and investments will receive your funds, even after you separate. After separation, your wishes for who should receive the money may change. If that is the case, you need to take steps to properly update your beneficiaries.
You can designate a new person/s as your beneficiary or you can designate your estate to be the beneficiary of your investments.
Please speak to your lawyer for advice as to what is the best option in your circumstances.
It may or may not be possible to change a beneficiary on your pension.
Pension matters are one of the issues that will ultimately need to be addressed with your lawyer in your separation and divorce process.