People may reach a point in their life when they are unable to make important decisions. While this can be devastating, it is possible for people to choose who will make those decisions on their behalf before that time comes.
Appointing a power of attorney ensures that someone trusted and knowledgeable is making decisions about where a testator may live and what happens to property.
There are two different types of power of attorneys: one to look after personal matters and the other to look after financial decisions, says Anne Hardy, who works in her own law office in Saskatoon.
In Saskatchewan, a person can save time, hardship, and money by choosing their power of attorney before they are unable.
“If you don’t have a power of attorney and you become incapacitated, then it will be necessary for somebody to apply to court for a guardianship order, which is far more expensive than (appointing) a power of attorney,” says Hardy.
Medical decisions, while also important, are not automatically made by the power of attorney. All medical decisions, unless stated otherwise, are automatically passed onto a spouse or their children in order of age. Anyone who would not agree with this order should consult their lawyer to discuss appointing a proxy.
Even if someone is acting as a testator’s power of attorney, that doesn’t mean that the testator does not have the power to decide things for themselves. A power of attorney still takes the testator’s decisions into account, says Hardy.
“So you can appoint somebody who can make those decisions generally or you can appoint somebody to make those decisions and you can say what you would like to see happen in certain circumstances.”
And a testator does not have to pick one power of attorney to make those decisions. Everyone has the option to choose multiple powers of attorney and what decision making power they have. Will their powers of attorney make decisions together or will they make decisions in a successive order? Discussing what the testator is comfortable with, professionals can flush out a testator’s wishes and find a solution that will fit their situation.
As the testator, people can also decide when the power of attorney steps in. Is it going to be right away or when the person is no longer capable of making their own decisions? If it is the latter, the testator also has a say in who decides their capacity, or lack thereof. If no one is mentioned, then two health-care professionals will step in to judge the testator’s capacity.
“A lot of people specify their power of attorney with their family doctor. Some people just leave it that it’s two health-care professionals. It’s not necessarily two physicians,” says Hardy.
Even after death, there are still important decisions to make for loved ones and their families.
The executor of the estate will ensure that everything the testator wants is completed upon their death, whether that is what beneficiaries get out of the estate or their wishes upon how to be buried.
“The executor simply gathers all the property, makes a list of it, looks at all the debts, pays all the debts, and then whatever’s left over, is divided under the terms of the will,” says James D. Steele, who practises estate litigation with Robertson Stromberg in Saskatoon.
The process is simple, he says; therefore, it is an easy step to give people peace of mind.
“It’s really not that hard as a young farmer to go to your local lawyer, say I want to make a will and then they’ll ask you all the questions you need to know.”
Picking a trusted person who will take care of the wishes of the testator is key, but Steele has rarely seen a case where an executor was unwilling to do the job. Plus, not doing so would leave them open to legal problems with beneficiaries.
“It’s somewhat rare for an executor to feel so strongly about the issue, for instance burial versus cremation, that they’re going to override the terms of a will. I don’t know why they would do it because it would open them up to claims from other family members that they weren’t acting properly.”
Not only does the person have to be trusted by the testator, they have to be able to pull their weight around with troublesome family members. Death can cause problems between the surviving members because stress and grief can bring out the worst in people.
Steele advises an odd number of executors and powers of attorney so there is less risk of stalemate, with all of them having an understanding of the work they have to do. Being geographically close can save a lot of headache, says Steele, but is not an impossibility.
Dealing with family dynamics and family history can be a large part of the job, says Steele, so the executor has to stand firm on certain issues to fulfill the wishes of the testator that some family members may not agree with.
“Ideally, someone who knows your circumstances, knows the family, and is respected will be a good choice…. Some children won’t be happy with certain decisions or they’ll be a little bit of backbiting. Having someone who is just a good respected choice can make that easier.”
This article should not be taken as tax or legal advice and readers should consult with their lawyer, accountant and other professionals before implementing any of the approaches discussed.