Did you know that the most important estate planning document is not necessarily a Will.
If you die without a Will, various legislation across Canada (for example Part 3 of the Wills and Succession Act in Alberta) governs how your estate will be distributed and provides a priority for persons entitled to apply to act as your Personal Representative (formerly known in law as the Executor) to deal with your estate. In many cases, the legislation provides for your estate to be distributed in a manner that is typically desired by most happily married people - first to your spouse, then to your children and then down the line of descendants.
If, however, something should happen to you while you are still alive but lack the mental capacity by reason of injury or illness to express your wishes or deal with financial matters on your own, your spouse and children do not have a default in law to make those decisions for you. Under an Enduring Power of Attorney, you can give your spouse, adult children, family and/or friends the legal authority to deal with your financial matters in the event you yourself cannot but you are still alive. Similarly, through preparing a Personal Directive, you can give your spouse, adult children, family members or friends the legal authority to make personal decisions, including healthcare and end of life decisions, for you in situations where you are unable to make decisions or express your wishes.
In the absence of making an Enduring Power of Attorney and/or Personal Directive the only way that a loved one, family member or friend can obtain the legal authority to make decisions for you is to apply to become your legally appointed Trustee and/or Guardian through the court process pursuant to the the laws of the jurisdiction in which you reside (for example the Adult Guardianship and Trusteeship Act in Alberta). These applications are lengthy, time consuming and very expensive. Very few lawyers will provide assistance for these applications, and those who do will require a very large retainer, typically in the $5,000.00-$10,000.00 range at the outset. The high value retainer is to deter people from retaining them to act in guardianship and trusteeship applications.
The best offence in this regard is a strong defense, that is, preparing your Enduring Power of Attorney and Personal Directive at the outset or having a lawyer prepare the same for you.
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