Wills, Powers of Attorney, and Estates,
Stephen R. Biss, B.A., LL.B.


Contents:
Wills
Powers of Attorney
Powers of Attorney as of April 1996
Appointing Children as Agents under a Power of Attorney
Home Drafted Powers of Attorney and Government Kits
Reducing Probate Fees in Ontario
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Wills

A will states how your property is to be divided after you die. It does nothing while you are still alive. A will appoints someone, an executor (also known as a trustee) to wind up your estate, pay your bills, and distribute your property. A will may also appoint someone, maybe the same person, to have custody of your children when you die. If you do not have a will and you die, property will be divided among your closest relatives according to the law. Someone will have to apply to be administrator and you will have no control over whom this will be.

Most husbands and wives leave everything to the surviving spouse. They usually make wills leaving everything to be divided equally among their children in the event that they are the last spouse to die or they die together. If the latter happens the executor will invest the estate until each child turns 18. If the child requires the money for school or medical or emergency needs the executor is given the power to distribute some of the money before age 18. Other clauses in the will take care of insurance, pension, and Family Law Act problems.

It is usually best for husband and wife to have their house registered in both names as 'joint tenants'. If one spouse dies the house belongs absolutely to the other. This saves time, probate fees , and legal fees when you die.

It is usually better for husband and wife to name specific beneficiaries (usually each other) in their R.R.S.P.'s, pensions, and life insurance rather than naming their estate as beneficiary. This also saves time, probate fees, and legal fees on death.

Powers of Attorney

Historically, a resident of Ottawa could authorize a resident of Toronto to be his agent disposing of his property in Toronto. The document giving that authority was called a power of attorney. The power terminated on the death or mental incapacity of the principal (or donor). Such powers of attorney for property are still useful today whether they relate to a special asset or are general and relate to all property. They are dangerous in that the agent (or attorney) could abuse the power and clear out the principal's assets at any time after the date of signing the document.

Since the late 1970's a properly drafted power of attorney will survive the mental incapacity of the donor. This tool becomes very useful when used between spouses who have a stable marriage. Should one spouse suffer a stroke or severe head injury, the other can handle the disabled spouse's property transactions. Spouses having wills prepared should consider the advisability of having powers of attorney as well. One's choice of agent should be limited to a spouse in a very stable marriage or another very reliable and honest relative or friend. Remember that the power can be used or abused at any time, not just during mental incapacity. The power of attorney terminates on the death of the donor.

Previous lawyer-prepared powers of attorney for property continue to be valid under the Substitute Decisions Act (in force April 1995). Powers of attorney now require two witnesses and some additional safeguards concerning the mental capacity of the donor (just like a will) prior to signing.

In the absence of a power of attorney for property, someone will need to apply to the Ontario Court (General Division) to become guardian of the property of a person who is incapable of managing property. Alternatively, if a person has been certified under the Mental Health Act or an assessment has been obtained and the Public Guardian and Trustee has become statutory guardian, the mentally incapacitated person's relative must apply to the Public Guardian and Trustee to replace him as the person's guardian of property. Unlike an agent appointed by a precise power of attorney, the applicant may be required to post security, draft a management plan, and regularly pass accounts.

The Substitute Decisions Act provides for a power of attorney for personal care. You may appoint someone (usually your spouse) to make decisions concerning your medical care in the event you are unable to do so. The agent will be able to sign medical consents.

Appointing Children as Agents under a Power of Attorney

A senior should be very cautious about giving a power of attorney to any one child or to children "jointly and severally." Jointly and severally means that any one child can use the power on his or her own without the consent of any other child. A senior or any person assisting a senior should be wary of a child who urges the senior to sign a power for the child's own purposes. Powers of attorney should be given only to agents who are absolutely trustworthy. If no family member is trustworthy, the government scheme for administration of your estate while you are incompetent may be safer.

A power of attorney should be stored in a safe place under the complete control of the grantor. The grantor should consider destroying the original document if the agent appears the least bit untrustworthy or if the agent is a spouse and the marriage becomes unstable. Store the power of attorney where it will be available to both grantor and agent in the event of head injury, stroke, or other hospitalization. If you choose to sign duplicate copies of the power of attorney (a practice which I do not encourage) the grantor should maintain strict personal control over all duplicate originals. You may wish to provide a photocopy to the agent. A power of attorney must be revoked in writing and the revocation must be executed in the same way as a power of attorney. A new power of attorney will revoke a previous power of attorney unless the grantor provides that there shall be multiple continuing powers of attorney.

Home Drafted Powers of Attorney and Government Kits

Some people are drafting their own powers of attorney using government kits or purchased forms. It is not essential to retain a lawyer to draft a power of attorney. However, if you prepare the document yourself or with the help of someone who is not a lawyer (eg. a paralegal) you risk giving an ineffectual power of attorney.

Powers of attorney (as of April 1995) require two witnesses. Old forms provide for only one witness. Witnesses must be present at the same time and sign on the same occasion as the person making the document (the grantor). Witnesses must not be relatives of the grantor or of the person being appointed as agent (also called the attorney).

A power of attorney appointing a spouse as agent should not be executed if the marriage is even slightly unstable. An agent may be able to abuse the power of attorney clearing out the grantor's assets any time after the power is signed.

Grantors using the government kits should be cautious about filling in all the blanks or spaces. Unclear conditions or restrictions may severely limit the use of the power of attorney. Conditions and restrictions should be drafted by a lawyer if they are used at all.

Home-drafted conditions stating that the power of attorney only goes into effect on incapacity may be particularly dangerous. Conditions which are unclear may result in the reluctance or the refusal of a financial institution to accept the power of attorney as sufficient authority.

Doctors may be reluctant to accept the medical directions of an agent if the personal care power of attorney contains complex or unclear conditions and restrictions. Such limitations on the authority of the agent should be drafted by a lawyer, if at all.

Reducing Probate Fees in Ontario

After death, the person filing your will (your executor) with the Court for its approval (probate) must pay a fee to the Province of Ontario of $15.00 for every $1,000.00 in value of the estate passing under the will. (The actual rate is $5.00 per thousand for the portion of the value of the estate under $50,000.00). Legal fees in estate matters are usually related as well to estate value. To the extent that you can reduce that value, your estate will pay less in probate fees (eg. estate value of $100,000.00 less results in $1500.00 saving) and may result in reduced fees paid to your estate's solicitor.

Husbands and wives may own their real estate in Ontario, including their homes,"as joint tenants and not as tenants in common". This means that on the death of one spouse the other owns the property absolutely and it does not pass via the will or form part of the value of the estate for purposes of probate fees.

Life insurance policies, pension plans, and R.R.S.P.'s usually make provision for named beneficiaries. If there is no named beneficiary the value of the policy or the plan passes to the estate. Persons planning their estates should check directly with their life insurance companies, their pension plan administrators and their R.R.S.P. financial institutions to ensure that they have such designations on file. An R.R.I.F. may contain a similar designation of successor annuitant. Some plans, including R.R.I.F.'s, also permit designation of alternative beneficiaries in the event that your spouse (the usual beneficiary) has also died.

A person nearing death may also wish to transfer property to a family member before death so that the value of that property never becomes part of the value of the estate.

Bear in mind that there will usually be income tax consequences whenever you transfer property before or at death to anyone other than your spouse.

On a recent visit to Florida I researched their probate filing and fee system. I suggest that persons owning real estate in Florida consult a Florida attorney respecting ways to reduce that state's large probate fees by holding title in such a way that property passes directly to a named individual on death and not through the will.

Power of Attorney for Personal Care

The new legislation providing for Powers of Attorney for Personal Care became law in Ontario on April 3, 1995. If you have a Power of Attorney for Property only, you should now consider preparing a Power of Attorney for Personal Care. In the event you become incapable of making a medical decision or are unable to consent to treatment or medication, your Personal Care Attorney (or Agent) will be the person who can act in your place.

The documentary requirements for a Personal Care Power of Attorney are similar to those for a Will. The document must be signed in the presence of two persons who also sign as witnesses. The witnesses should not be family members and must not be persons named in the Power of Attorney for Personal Care.

It is possible to insert special instructions to your Attorney (or Agent) right into the document but if you choose to do so any conditions or restrictions should be drafted by a lawyer. Conditions or restrictions which are not properly drafted may confuse the agent or doctor and may delay necessary treatment. It is better to choose a very reliable person as your Attorney (or Agent) and then privately discuss your wishes.

Powers of Attorney as of April 1996

The Ontario Government has enacted new legislation effective April 1996 which again changes the law related to continuing powers of attorney for property and powers of attorney for personal care as well as health care consent law. Some commentators, including the Ontario Association for Community Living have been very critical of this new law, Bill 19.

Government form powers of attorney for personal care may now be particularly inadequate since the Consent to Treatment Act, 1992 has been repealed and replaced by the Health Care Consent Act, 1996.

Seniors and others should now be more cautious in executing a power of attorney for personal care. A formal expert assessment and finding of incapacity to make personal care decisions is not necessary prior to the substitute decision maker's use of the power of attorney.

A "health practitioner" may now administer a non-emergency treatment if he or she is of the opinion that the person is incapable with respect to the treatment and the person's substitute decision maker has given consent. "Health practitioner" includes an audiologist, a speech pathologist, a chiropodist, a chiropractor, a dentist, a dental hygenist, a denturist, a dietician, a massage therapist, a medical laboratory technologist, a radiation technologist, a midwife, a nurse, an occupational therapist, an optometrist, a medical doctor, a physiotherapist, a psychologist, a respiratory therapist, a naturopath, and others.

With respect to admission to care in a home for the aged or a nursing home, consent may be given or refused on the person's behalf by his or her substitute decision maker if the person is found by an "evaluator" to be incapable with respect to the admission. "Evaluator" includes an audiologist, a speech pathologist, a nurse, an occupational therapist, a medical doctor, a physiotherapist, and a psychologist.

Failure to make a proper power of attorney for personal care may result in you having no choice in who becomes your substitute decision maker.

Interested in having an Ontario Will or Power of Attorney Prepared?

Free Downloads You Can Print and Bring To Any Lawyer:

Questionnaire for Preparation of a Will by Your Lawyer

Inventory of What You Own for Use by Your Lawyer or Executor

Questionnaire for Preparation of Power of Attorney for Personal Care

Questionnaire for Preparation of Power of Attorney for Property

Free Income Tax Guides and Forms from Revenue Canada

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