Everything You Should Know About Wills, Personal Directives and Enduring Power of Attorney

Regardless of your age, it’s always important to get your life’s assets in order. Even if you aren’t in poor health or older in age, it’s important for everyone to start thinking about setting up a will, personal directive, and/or enduring power of attorney just in case. Although the legal terminology and idea of a making a will can be intimidating and bleak, making sure you are taken care of legally can plan for any unforeseen circumstances in the future. Through this article, we will explore what it means to have a will, a personal directive, and an enduring power of attorney. We will also explain the legal verbiage associated with these methods so you can understand what exactly you are signing up for. Don’t forget, once you set up an appointment with a lawyer or other legal professionals, Senior Home Care by Angels can take care of the driving! Let us know when and where to pick you up and we will take care of the rest.  If you have any questions about these legal methods or are unsure who to contact, we can help you out! Have more questions after reading this article? Be sure to check out the resources at the bottom of the page for more information.

At Senior Home Care by Angels, we can help ease your fears by putting you in touch with Alberta Health Services (AHS) and/or your trusted doctors. As an essential service, we will take direction from AHS and the Office of the Public Guardian and Trustee office to address your concerns. Feel free to ask any of our care staff for tips on how to stay safe during this time. Whether you are in St. Albert, Edmonton, Sherwood Park, Spruce Grove, or other surrounding communities, check out our companion care services here or other home care services here if you require other care!

Wills:

What is a Will?

Simply, a will is a legal document that states how your property will be distributed after your death. Property (also known as assets or your estate), in this case, refers to money, possessions, houses, investments and, overall, everything you own. This also will include naming a guardian for any children who are still minors at the time of your death. When setting up a will you will also name a personal representative (an executor/administrator of estate) who will carry out your wishes as stated in the will (usually a family member or friend). The executor is not only tasked with carrying out your wishes but also is responsible for arranging the funeral, paying out any debts (from your estate), and securing your assets.

Types of Wills:

There are two types of wills and each will be carried out under certain circumstances to make them valid.

1. A Formal Will

A formal will is usually prepared by a lawyer and is signed by you. It must be signed in the presence of two witnesses who will also sign the will. These wills can be expensive as you need to pay a lawyer for the time to make up the legal document. Though you can make a will yourself (see more below), a formal will is always legally sound, makes sure no assets or beneficiaries (recipients of your will) are missed, takes you through every legal scenario, and will help you address any legal concerns you may have. This is the most traditional way of making a will.

2. A Holograph Will

This is a will entirely made by you, is in your own handwriting, and must be signed in the presence of two witnesses as stated above. Though this is the cheapest way to make a will, it is not recommended as it is easy to make mistakes, you may forget to list certain assets, and/or fail to showcase different “what if” scenarios. Most people who take this route will use will making kits (available online) but this method is by far the most difficult and time-consuming.

How and When Should you Prepare your Will?

Regardless of your age or health conditions, it’s important to make a will as soon as possible. Assuming you are above the age of 18, anyone can make a will at any time. Though you may want to change your will down the line (more below), it’s still important to think about how all this might be handled. Though, it might not be an urgent matter, getting a will out of the way early can at least give peace of mind for the future. If you would like to consult with a lawyer you can call the Law Society of Alberta’s Lawyer Referral service program at 1-800-661-1095 or you can click here.  

Changing and/or Reviewing your Will

When you sign a formal will, you will have to sign multiple copies. Though most of these stay with the lawyer for safekeeping, you will get your own copy as well. It is recommended that you review your will to make sure everything is correct before you sign the document. It is also recommended that you review your will if any major life events, laws, personal, or financial circumstances or estates change. For example, if you get married or have children, you may want to change your will to reflect these relationships. You can change your will at any time, however, you will have to pay your lawyer again to change the document. You will also have to take another trip to your lawyer’s office to sign off on the new will under the conditions as before.

If you Die Without a Will

If you die without a will, your estate will be distributed based on the laws laid out by each province/territory. If you die without a will (called intestacy) In Alberta, your estate will be distributed based on The Willis and Succession Act. This act is used to distribute one’s estate evenly and fairly to the wishes of most people, but it can easily become complex, unfair, and may not return desired results. The full act can be accessed here. If any debts have accumulated by the deceased, the debts must be paid from the estate first before any inheritances or assets can be distributed. If you are not co-owner or have co-signed on any assets you (as a family member or beneficiary) are not legally obligated to pay the deceased’s debts. More can be learned here.

Personal Directive and Enduring Power of Attorney

Where a will is enacted, a personal directive and enduring power of attorney works when you are still alive. Personal directive and enduring power of attorney comes into play if you are no longer able to make personal or financial decisions due to a debilitating illness or injury. Through this method, you would choose someone to manage your personal and financial affairs when you are unable to. Both methods can be temporary or long term.

Personal Directive

A personal directive is a legal document that appoints someone (referred to as the agent) to make decisions on your (referred to as the maker) behalf if you no longer have the capacity to do so. The personal directive grants this person the ability to decide if you will receive certain medical treatment, where you will live, as well as other related decisions.

Enduring Power of Attorney

Where a personal directive covers medical decisions, enduring power of attorney covers financial and legal decisions. As two methods go hand in hand, enduring power of attorney is appointed to someone (referred to as the attorney) who can make financial and legal decisions on your (referred to as the donor) behalf. These decisions include estate planning, investments, legal actions, etc. An enduring power of attorney can start immediately or when/after someone loses the capacity to make their own decisions.

How and When Should you Prepare a Personal Directive/Enduring Power of Attorney?

Like a will, anyone who is over the age of 18 can prepare a personal directive/enduring power of attorney. This can be done on your own or through a lawyer. It’s common to have a lawyer write up your will, personal directive and enduring power of attorney all at once to ensure you are fully taken care of. Keep in mind, unlike your will, you can assign multiple people to act as your agents/attorneys and handpick which decisions they will have power over. Being an agent/attorney is optional. Therefore, it’s best to ask the person(s) to see if they will agree to be your agent/attorney first before submitting the legal documents. Though this is optional, you can register your personal directive with the Office of Public Guardian and Trustee to help healthcare providers find your agents if something were to happen to you. More information about personal directives can be found here.

If You Don’t Have A Personal Directive or Enduring Power of Attorney

First, if you don’t set up a personal directive before/during the time you lose your capacity to make decisions, you are not able to personally choose your agent. If this happens, a healthcare provider will likely appoint your nearest relative to make these medical (non-financial) decisions for you. This may lead to that family member going to court to officially become your guardian which may cost a lot of money and time. Second, if you don’t have an enduring power of attorney set up, a friend or family member might have to go to court to become your trustee (person who can legally make financial decisions on your behalf).  Remember, both a guardian and trustee (both can be the same person), is not needed if both a personal directive and enduring power of attorney are submitted already (agents and attorneys fill this role).

Though thinking about setting up wills, personal directives, and enduring power of attorneys can be daunting, it will make all involved more confident should anything unforeseen happen. Remember, even if you aren’t in poor health or infirm, it is still important to set up appropriate legal methods just in case. Taking care of these issues now will relieve any stress and anxiety related to your future well-being.

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Resources/Sources:

Government of Alberta Information on Wills, Personal Directives, Enduring Power of Attorney

https://www.alberta.ca/wills-in-alberta.aspx#toc-7

https://www.alberta.ca/personal-directive.aspx

https://www.alberta.ca/enduring-power-of-attorney.aspx

International Wills

https://www.alberta.ca/international-wills.aspx

Trustees and Adult Guardianship

https://www.alberta.ca/trusteeship.aspx

Inheriting Debt After a Death

https://www.creditcanada.com/blog/can-i-inherit-debt-after-someones-death

Law Society of Alberta

https://www.lawsociety.ab.ca/public/lawyer-referral/

Wills and Successions Act

https://www.qp.alberta.ca/documents/Acts/W12P2.pdf

Making an Enduring Power of Attorney

https://www.cplea.ca/wp-content/uploads/MakingAnEnduringPowerOfAttorney.pdf

Making a Will

https://www.cplea.ca/wp-content/uploads/MakingAWill.pdf

Office of the Public Guardian and Trustee

https://www.alberta.ca/office-public-guardian-trustee.aspx

Videos:

What is a Personal Directive

https://www.youtube.com/watch?v=aVRDfyArcUo&index=11&list=PLvrD8tiHIX1K5mgurr7oMs4MLM24E8elU

Office of the Public Guardian and Trustee YouTube Channel

https://www.youtube.com/playlist?list=PLvrD8tiHIX1K5mgurr7oMs4MLM24E8elU