Page 15 - GTA Real Estate Magazine July 2021

Continued from Page 14
A Will, Why have it, and what is a Living Will?
evidence will be taken into account. To keep things interesting in my professional world, I like to share absurd examples, as it helps illustrate my point. For example, how about if the individuals designated in the Will to have custody (of the child after both parents have passed away) have secretly become drug lords (thinking of the hit TV show “Breaking Bad”) and this only comes to “light” after the passing of the parents. More realistically, it is very possible the named custodian has moved across the world, does not have financial stability, or other things have transpired in their life and therefore are no longer the best choice for the child.
What Other Things Does A Will Cover?
Children aside, the Will should cover many other important wishes of the deceased, including specific items they want to leave to specific people, cash gifts in any quantity, and the powers or limitations of the estate trustee. The Will should also discuss what happens when one of the beneficiaries have passed away, or in the case of someone who has a spouse and children, they have all passed away. Some couples will tell me if they all die, each spouse’s share should go to their respective family. As their lawyer, it is my job to explain to them what that really means and how order of death can play a role in which side of the family might end up getting everything.
A Will also allows you to designate charities as a beneficiary (either as a percentage of your entire estate or as a recipient of a specific gift) which dying intestate will not allow you. Also, if you have an intended beneficiary that is disabled, having a Will is vital to ensure this beneficiary is provided for as you have intended and in the beneficiary’s best interest.
Do I really need a lawyer to draft my own Will?
I have touched on a few good reasons to have a Will, but there are so many more. People ask me about “Wills kits” and my response is, “would you use a “kit” or YouTube to rewire your entire home electrical, panel and all, if you had no previous experience ?” Probably not. A “kit” will not talk you through the “grey” areas that you have not thought through because “you don’t know, what you don’t know”, nor can it give you advice on how to estate plan going forward.
What is a Living Will?
Now that we have considered the importance of having a Will, let’s jump into the Living Will. Most people know that a Will comes into effect when one dies. So what does a Living Will do and when can it be used ?
e term Living Will is otherwise known as an “advanced health care directive” or, simply, “advanced directive”. Essentially, it is a document that addresses wishes about your future care with respect to your health if you become mentally incapacitated. It can cover everything from forbidding the use of medical treatments to receiving experimental treatments. In other countries, such as our neighbours to the south, a Living Will is a legal document. In Ontario, it is not legally binding and whether it may be enforceable is uncertain. However, there have been couple of legal cases where the courts have enforced the advanced directive.
What is a Power of Attorney for Personal Care? The Living Will should not be
confused with the Power of Attorney for Personal Care. e Substitutions Decisions Act allows you to appoint someone you trust to make
decisions for you in the event you become mentally incapacitated. is appointment is done in a document called the “Power of Attorney for Personal Care”, and is a legally binding document. e decisions your appointedattorney will be making for your personal care may include health care, nutrition, shelter, clothing, hygiene and safety.
The “advanced directive” can form part of your Power of Attorney for Personal Care to give your attorney guidance regarding your wishes, but it does not need to. I encourage you to speak with the person you have appointed or want to appoint as Power of Attorney for Personal Care and ensure this individual knows your wishes. There is no right or wrong answer as to who you appoint, but ideally, someone who can respect your wishes, is easily reachable, and is "level headed" to make tough decisions during emotional moments.
Make the time - better late than never!
Talking about what should be stated in your legal documents pertaining to your wealth and health is often not fun and is therefore very often put off; but if you consult a lawyer to get legal advice and guidance, and you will find that with the help of a professional the task will not be as overwhelming and the results will be a clear and coherent Will and Power of Attorneys. I ask my clients lots of personal questions regarding their personal lives (their relationship with their selected estate trustee and power of attorney, and beneficiaries and loved ones excluded from the Will or Power of Attorney) and financial life to ensure I have the “full picture” and have provided advise and guidance in the appropriate areas.
Leave your loved ones with a peace of mind, and not costly complications and/or emotional anguish.
GTA Real Estate JULY 2021 Page 15