December 2015 - Garton & Harris

Putting a power of attorney in place is vital

December 28, 2015/in Power of Attorney /by gartonandharris

As you go through life, the longer you live, the more you realize that there may be times when you can’t make decisions for yourself. You need someone to do that for you. This includes paying bills, managing assets and handling your health care decisions.

Assigning someone as a power of attorney, someone you trust to make decisions for you, is something that you really need to think about. Whom do you truly trust? Who will make the best decisions for you? This person must be someone you believe will be able to compassionately make decisions on your behalf.

At the law firm of Garton & Harris we have over thirty years of experience in this area. Perhaps you need to place a power of attorney and need to write down what kind of decisions this person will make on your behalf. Or maybe you are a power of attorney and need to know what your next steps are going to be.

Perhaps the person is incapacitated for a short period of time and need his or her bills paid and assets managed. Maybe the power of attorney is for a long period of time and you need a game plan for the long run. We can help with both scenarios.

If you don’t have power of attorney in place, your family members will have to apply for a Court Order so that they can look after you. It is costly, straining and time-consuming for your loved ones. What happens if you need life saving medical intervention and no one has the right to approve it?

Getting us involved before the worst happens is a positive step in the right direction.

What happens when you die intestate?

December 22, 2015/in Estate Administration & Probate /by gartonandharris

Did you know that if you die without a will or an estate plan in place, this is called intestacy? The laws of Canada are very specific about what happens to your assets and property if you die without a will. There is a pattern that is followed, by law, when this happens.

If you die without a will or estate plan and you have no children, your wife, if you have one, is entitled to everything you own. There will be no chance for you to share any of your property if you don’t have an estate plan that includes a will. It also states that, if you have a net value not over the “preferential share,” your spouse has the rights to all of it. Preferential share is defined, according to “Investopedia,” as paying a fixed dividend which allows for your spouse to own your assets, stocks, bonds, property and business holdings. Your spouse is responsible for paying any debts owned by your estate, but he or she is entitled to all of your assets after this.

If you have one child, your spouse and that child will split in half what you own and they must share this amount. If you have two or more children with your spouse, your spouse is entitled to one third of your estate and the children will share among them the rest of what is left.

Getting your estate in order should be something that you consider important. What if something happens to you and you are left intestate? This can be tied up in court for a long time. Taking care of your assets and property is extremely important. It can leave a lasting legacy to not just your children but their children as well.

Source: Laws of Canada, “Succession law reform act,” accessed Dec. 22, 2015

Power of attorney needed when incapacitated

December 15, 2015/in Power of Attorney /by gartonandharris

While the law doesn’t require you to have a power of attorney in place, it may be a good idea to have someone legally named so that if something happens and you can’t make decisions for yourself, you have someone you trust looking out for your best interests. The term “attorney” means a person or persons you have chosen to act on your behalf. This person need not be a lawyer, just someone you trust.

If you become mentally incapable, which means that your capacity to understand your own needs is diminished, you need to have a power of attorney in place.

The Office of the Public Guardian and Trustee are the backbone of this action. This office can assist you in putting a power of attorney in place. There are many rules of law that apply so getting a lawyer involved early on may be a good idea.

Lots of people are under the impression that if something happens to them and they cannot make decisions on their own, their relatives will be able to perform these tasks on their behalf. This is not necessarily true, because, for financial decisions, legal authority is needed. You can get these issues taken care of when you are unable to by naming someone in a continuing power of attorney for property.

There is also a power of attorney for personal care. This covers what you eat and where you live; things like this.

If you don’t have a power of attorney in place, the court will make the decision for you and you may not agree with the judge’s choice. Talking this over with a lawyer has experience in this realm can make a big difference at this time.

Source: Ministry of the Attorney General, “Power of attorney,” accessed Dec. 15, 2015

What do I need to do to put a will in place?

December 9, 2015/in Wills /by gartonandharris

Putting a will in place just makes good sense, no matter how wealthy or poor you are. You have valuable things that your heirs want to keep in the family. Ensuring that they get what it is they most want ought to be on the top of list for you at this stage of the game. The laws of Canada have some very pointed rules that you need to be aware of.

For instance, if you are married to more than one person in British Columbia, you will run into legal troubles even if you have a will in place. British Columbia does not allow a spouse to be legally married to more than one person. You need to be sure that any extra relationships are ended legally in order for your will to stand up in court.

Another rule of law you need to be aware of: If you specify that you want to make an heir of someone in the context of your will, that person will be seen as a legal blood relative unless you tell it differently. It seems obvious that you would need to specify, but the law remains adamant in its description of blood relatives. In other words, your son-in-law will be seen as a blood relative unless you specifically say he isn’t.

You will need to name a power of attorney for your will to be executed with your wishes in mind. This person must be trustworthy and honest. He or she needs to be able to dedicate time to this because this person will need to pay off your debts and will distribute your property exactly as you have in your will. Of course, a trusted lawyer can do this or help your power of attorney do this task if it seems overwhelming.

Source: Laws of Canada, “Succession Law Reform Act,” accessed Dec. 09, 2015

When you pass away without a will in place

December 1, 2015/in Wills /by gartonandharris

When you are living life, going along with whatever the world brings to you, you don’t want to think about such heavy matter as putting a will in place. You know you need to do it but not now. There is a flip side to this thinking. What if the unthinkable happened and you suddenly weren’t here anymore? How are your heirs supposed to know what you intended if you don’t have a legal document in place to tell them what needs to be paid off and who gets what? As an example, if you are flying to San Jose but you don’t explain to the person at the airline counter that you mean Costa Rica not California, you could end up in the wrong place due to insufficient information.

One issue that comes up repeatedly when someone dies without a will in place is what to do about the child who got everything that you had to give him or her while you were still alive and really doesn’t get anything additional when you die? It is a touchy subject, but one that needs to be addressed.

Without it being in the will, the court may make the decision to divide your property and assets equally between all heirs. If you have a will in place but it needs to be updated, this can cause a rift in the relationship that your children have with each other. It can be costly to your estate and to them if they decide to fight for what you told them you wanted to see occur when you are no longer here.

It is hard to satisfy everyone. Being aware that you need an up-to-date will is important. Knowing a legal representative who can help you put one in place or change the one you have so it will stand up to legal scrutiny is equally as important.

Source: The Globe and Mail, “Disinheriting family can lead to big legal costs for your heirs,” accessed Dec. 01, 2015

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