May 2015 - Garton & Harris

Is a will all I need in my estate plan?

May 28, 2015/in Wills/by gartonandharris

Estate planning and wills go hand in hand. But is that everything that you need for you estate plan to be complete? A good will includes directives that tell everyone what you want to happen to your property when you are no longer here.

Do you have any real estate, money, investments or personal belongings that you want to bequeath? These all go in your will.

Items that a will doesn’t deal with is any property or assets that you own jointly, not exclusively. If you have a joint bank account or even a home that is in you and your spouse’s name, the asset will have a right to survivorship. A right to survivorship means that the whole body of the asset becomes the other person’s sole property when you die.

A will doesn’t deal with insurance, a registered retirement savings plan, a registered retirement income fund or anything that already has a beneficiary named in it.

The good thing is, the will isn’t activated until you are gone and you can change it as many times and as often as you want.

A will is actually only part of an overall estate plan. You can transfer assets to beneficiaries without a will and without the tax consequences. Talking to your attorney about this may be a good idea.

You will need an executor or someone who will safeguard the estate. For example, someone who will make sure your debts are all paid off when you can’t see to it anymore. This person will also divide your estate for you among the persons named in your will.

Naming your attorney as your executor is something that may be worth looking into. If you are an executor, having an attorney beside you who will go over all the documents and let you know in a very clear manner what is to happen is such a relief.

Source: The Canadian Bar Association, British Columbia Branch, “Making a Will and Estate Planning,” accessed May. 28, 2015

Power of attorney may be needed in British Columbia

May 18, 2015/in Power of Attorney/by gartonandharris

Focusing on the legal aspects that surround a power of attorney when someone is incapacitated or unable to make decisions for him- or herself is important. Being that person who has to make decisions comes with a lot of responsibility.

If that power of attorney is challenged, the court will step in and appoint someone to have guardianship. This is an appointment of an individual by a judge so that a person may make decisions on behalf of the incapacitated person. His or her property, assets and personal care may need to be looked after as well.

This is a serious and far-reaching appointment that can have dramatic consequences for the incapacitated person. The guardian will have complete control of all aspects of the incapacitated person’s life. This can mean a rift with fellow family members and can cause general grumbling if you make a decision that doesn’t agree with what the other family members like.

The person whose is declared incompetent may not like the fact that he or she has been ruled unable to make clear decisions. They may feel like you are taking advantage of them and using their assets and property for your personal gain.

You can begin to see why you may want to contact an attorney. There are lots of people who may be angry enough with you to bring this matter back before the court. While it may seem like a thankless job, you have the responsibility to see this through to the end or a better day for the incapacitated person.

The Substitute Decisions Act, or SDA, was passed in Ontario in 1992. This is the law that covers the procedural steps that are involved in applying for guardianship of property, person or both.

Getting an experienced legal representative can make all the difference if you see that a loved one is struggling and needs a person who has power of attorney to help them. Knowing the legal rights of that person and of the person who is seeking to assist a person in need of help is vital.

Source: Huffington Post Canada, “Plan Ahead: When a Power of Attorney Is Challenged,” Suzana Popovic-Montag and Ian M. Hull, May. 09, 2015

Guardianship in question in British Columbia

May 11, 2015/in Estate Administration & Probate/by gartonandharris

When you focus on the legal aspects that surround litigation that must be filed to get a power of attorney in place, your mind may go straight to what will happen if and when it is challenged.

When this power of attorney or the ability of a person to make sound decisions is challenged, the court will have to appoint someone to take care of the incapacitated person’s property, assets and even business dealings. An application for guardianship is the method used most often to handle the power of attorney. This guardianship is put in place by the court system in British Columbia.

Appointing a guardian is a very sweeping decision and can have some rather dramatic results for the person who is incapable of making good choices. All decision making is now in the hands of another person. It can be very emotional for everyone.

The alleged incapacity of the individual whose freedom is being threatened will most likely cause this person to be upset and they will do their best to prove they are able and capable of making good sound decisions. There may also be tension within the family that is involved because more than one person may think they have the right to make decisions for the incapacitated individual.

The Substitute Decisions Act, or SDA, outlines the steps that must be taken to get guardianship when the court is making the decision of who will be appointed and what that will include; guardianship of property, person or both.

The SDA is a guide to providing specific parameters when it comes to making a decision of this magnitude. It can be a bit confusing, which is why you may want to have a legal representative present early on. They will know the different laws that govern this type of situation and will be able to offer their knowledge and experience.

Being aware that you can go to the court and get guardianship and the overriding steps that need to be taken is a good first step with which to start.

Source: Huffington Post Canada, “Plan Ahead: When a Power of Attorney Is Challenged,” Suzana Popovic-Montag and Ian M. Hull, May. 09, 2015

Legal help with power of attorney can be vital

May 5, 2015/in Power of Attorney/by gartonandharris

Have you thought about a future time in your life when you may not be competent to make decisions for yourself? Having a power of attorney in place can give you true peace of mind. The person assigned this task can be hand-picked by you in order to ensure that your best interests are foremost in their mind. This person will represent you and your choices will be treated with care.

Without this power of attorney, your family will need to go before the court and apply for a court order to make decisions for you. This can be costly and cause stress on your family when they need to be focusing on you and your health.

Here at the law firm of Garton & Harris, we have years of experience in dealing with this type of situation and can offer advice and even a listening ear that will ensure you have all your documents in place should something happen to you.

Not only can medical decisions be made for you by your power of attorney representative, but financial decisions as well. Can you begin to see why it is wise to have your own appointee in place instead of a court ordered representative?

Lots of people assume that their spouse or a different yet close loved one will be able to automatically speak for you when you are incapacitated. This is not always true. If you don’t have a person specifically named, any member of your family can apply for a court order from a judge and be your representative. Don’t forget, this person makes all your decisions for you.

Having a loved one or spouse as your power of attorney is so important. Knowing that you have taken care of this not-so-minor decision can bring you and your loved ones great peace of mind.

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