As an estate planning lawyer, one of the most common questions I hear is some variant of “what documents do I need to have in order to be prepared if something happens to me”? The answer to this, as usual, is “it depends”. However, there are 3 “main” documents a client should consider when making an estate plan.
The Will: this document is the core of an estate plan and most people are familiar with how it works. Taking effect only upon the death of the will-maker (testator), this document appoints an executor to act as trustee to ensure your debts are paid and your assets are disposed of in accordance with the terms of your will. Many details can complicate these arrangements: be aware of special clauses needed for disabled beneficiaries in particular as well as the risks BC’s legislation creates for blended families. It is straightforward to make a simple Will, it is equally easy to incorrectly make a complex Will.
The Power of Attorney: this document appoints an “attorney”, who in this use of the word is just a person who has been provided with authority to make decisions with respect to your finances. Managing your accounts, filing tax returns, and paying for your support using your funds are all common powers using this document. In particular, this document can take effect upon a loss of capacity (a “springing” power of attorney), or upon signing and continuously thereafter until revoked (an “enduring” power of attorney). There are multiple benefits and drawbacks to each of the springing vs enduring versions and it is recommended you receive experienced legal advice prior to deciding which will be right for you.
The Representation Agreement: this document is a comprehensive health care authority assignment aimed at the duration of a person’s medical condition and their treatment. Common provisions include approving or refusing medical procedures and treatments, hiring care providers, and making decisions with respect to assisted living arrangements. The Representation Agreement is much more than a method of planning for life-support decisions, however many clients understandably focus upon this aspect. An experienced lawyer will ensure consideration is paid to all areas of the document to provide for your well-being during vulnerable times when you may not be able to speak for yourself.
Unfortunately, many times we encounter situations where a Power of Attorney or Representation Agreement is needed but has not been created and the person has lost capacity to make one. In this instance, the alternative is to bring an application of British Columbia Supreme Court for appointment of a “committee”. This can be a lengthy and expensive procedure which should be considered a last resort. However, when needed, experienced estate lawyers can navigate the process skillfully to ensure clients have an appointed committee for their care as quickly as possible.
Rather than waiting until there is a pressing need for these documents, which results in enormous stress upon clients and their families, I recommend making estate planning arrangements without the pressure of urgency which can impair capacity and may lead to unexpected difficulties. Contacting an estate planning lawyer before there appears to be no immediate need is always the best course of action.
