Estate Planning: Wills, Powers of Attorney and Personal Care Directives
Published May 23, 2017
Associated Areas of law
Why should I have a Will?
A Will determines how your property is distributed after your death. Without a Will, you are said to have died “intestate” and the division of your property is determined by formula under the Intestate Succession Act. Administration of the Estate of an intestate person can be complex and costly; furthermore, the ultimate division of assets may not reflect the wishes of the deceased.
I have an old Will. Should I update it?
We suggest that you review your Estate Plan every 5 years; however, you should do so sooner in the event of any of the following:
- Separation / divorce
- Death / incapacity of family member
- Birth or adoption
- Significant financial changes
- Moving between provinces
- Purchase / sale of a home or business
Having an up-to-date Estate Plan is one of the most thoughtful things you can do for your family.
What should I consider before writing my Will?
One of the key decisions is your choice of Executor(s). The Executor will pay the liabilities of your Estate (including filing your last personal income tax return, paying outstanding bills and probate taxes), and will oversee the distribution of your assets according to the terms of your Will. Practically speaking, the role of an Executor is all encompassing, including everything from paying your last Visa bill on your Estate’s behalf, to cleaning out your kitchen cupboards. Many people appoint their spouse as Executor, but close friends, family members or a Corporate Trustee may also be an appropriate choice. In any event, it is important to name one or more alternate choices in the event that your first choice predeceases you, or is unable or unwilling to act.
How to divide?
In undertaking your Estate Plan, it is important that you have a thorough understanding of your assets and their approximate value, including any business interests, life insurance policies and retirement benefit plans. Bequests in a Will may have as many variations as you have assets and intended beneficiaries. Your Will may include gifts of specific property, fixed monetary bequests or division based on a percentage of your Estate value.
Trusts for children
In the absence of trusts in a Will, children will inherit property at the age of majority (19 in Nova Scotia). Trusts may be used to permit the Executor to retain control over a child’s inheritance past the age of 19. The terms of the trust will dictate the amount of funds available to a child prior to the ultimate distribution and/or the frequency of payments prior to the ultimate distribution. Also, Trusts can provide tax advantages and creditor protection opportunities for children.
Trusts for other purposes
Trusts in Wills are also useful for:
- Tax planning
- Planning for blended families
- Planning for disabled children
- Charitable gifts
- Family cottages
- Business interests
The lawyers at Patterson Law can tailor your Estate Plan to your specific circumstances.
Guardian for my children
If you have (or anticipate having) children, you should also consider who you would like to appoint as a guardian in the event that both parents are incapacitated or deceased. Again, this should be a person you trust and with whom you have discussed this appointment.
Power of Attorney
What is a Power of Attorney?
A Power of Attorney (POA) is a document that enables the person you appoint (the “Attorney”) to act for you with respect to legal and financial decisions. POA’s can be executed for specific purposes, such as the purchase or sale of property, and if so, expire once their purpose is fulfilled. The POA sets out the specific powers of the Attorney, but generally the Attorney can do anything you would be able to do yourself (such as draw money from your bank account, purchase or sell property, etc.). A POA termed an “Enduring Power of Attorney” remains in place even if you become mentally incapacitated.
Why should I have a POA?
The most common reason for executing a POA is to ensure that the person of your choice is in a position to manage your personal and financial affairs should you be unable to do so. Without a POA, it may be necessary for your family to apply to the court for guardianship in the event that you become incapacitated.
Who should I appoint as my Attorney?
Your Attorney should be someone you trust, and with whom you have discussed your wishes. Many people appoint their Executor(s) (as appointed in the Will) as their Attorney. You may appoint two Attorneys to act as Co-Attorneys. This means they must act jointly and make their decisions together. You should also appoint an alternate Attorney, who would only act if your first choice is unable or unwilling to do so.
Personal Care Directives
On April 1, 2010, the Personal Directives Act (“PDA”) came into force in Nova Scotia (replacing the Medical Consent Act). Under the PDA, you can make a Personal Care Directive. You can appoint a person (your “Delegate”) to make your health and personal care decisions when you are no longer able to do so. You may also prepare a Personal Care Directive in which you provide specific instructions for your Delegate if you
If you have already appointed a substitute decision maker under the Medical Consent Act for your health care decisions, you should discuss with your lawyer updating this appointment under the new PDA.
Advanced Estate Planning
Depending on your circumstances you may wish to consider other estate planning opportunities including:
- Minimizing income tax on and after death
- Minimizing Probate costs
- Succession planning for businesses
- Advanced planning for disabled child
- Planning for foreign-owned assets
- Alter Ego / Joint Partner trusts
- Charitable Foundations
How do I get started?
Please contact any member of our Tax and Estate Planning group to begin the discussion surrounding your Estate Plan.