Estate Planning Basics - Frequently Asked Questions

1. What is the difference between a Will, Power of Attorney and a Health Care Directive?

A Will is intended to govern after death.  It deals with the distribution of assets to the people named in your Will (called “beneficiaries”).  On the contrary, a Power of Attorney governs during your lifetime and ceases to have effect upon death.  The Power of Attorney allows another person to step into your shoes and act with the same authority as you.  So, if you become incapacitated or if your mobility becomes severely restricted, someone is able to manage your affairs A Health Care Directive governs medical decisions.  It expresses your wishes and appoints a proxy to make decisions on your behalf if you are unable to do so.

2. Why do I need a Power of Attorney and a Health Care Directive?

Many people are surprised to learn that the ability to make health care decisions on your behalf does not fall within the authority granted under a Power of Attorney.  Health care decisions are governed under different legislation and a separate document called a Health Care Directive must be drafted in order to grant someone authority to make these decisions. 

3. How often should I update my Will, Power of Attorney and Health Care Directive?

You should review your documents on an annual basis or whenever there is a significant change in your family or life circumstances such as separation, divorce, marriage, or children.  If you think there is anything you need to discuss, make an appointment to see your lawyer.

4. If I only want to make a small change to my Will, can I cross off the portion I don’t want anymore and handwrite the change?

You should never make handwritten amendments to your Will.  This is a major cause of disputes over the validity of the Will and the intention of the testator. Your lawyer can make small amendments to your Will by drafting what is called a codicil.  This is a supplementary document that is attached to your original Will indicating your changes.  It is less expensive than redoing your Will and can save your family a complicated legal battle over the Will’s validity.

 5. Do I need to see a lawyer to draft these documents or does a Wills Kit suffice?

It is always recommended seeing a lawyer to draft your Will.  The legislation governing your Will varies from province to province, and often, a Will Kit is prepared on the basis of another province’s law. 

Additionally, every person’s circumstances are different and it is important to get the proper advice specific to you.  A Will Kit is not always able to do this as it usually consists of fill-in-the blank documents that are the same for every person.  A lawyer is able to bring specific issues to your attention (for example, things can get tricky with impending marriages, divorce, and common law relationships) and answer specific questions about your estate planning.  Further, you want to ensure your Will is executed properly so there are no disputes as to the validity of the Will based on improper execution.

Your Will is an important document for the people you leave behind.  Ensuring the clarity of your intentions and ensuring your Will is legally and properly drafted could save your loved ones lengthy and expensive legal battles down the road.

6. If I revise my Will, Power of Attorney, and/or Health Care Directive, what should I do with my old documents? Where should I keep my new ones?

You should ensure your old estate documents are destroyed once your new ones have been signed.  It is important to avoid confusion about the most recent documents.  If you have old documents in your possession, they can easily be mistaken for the most recent ones. 

You should keep your original Will with your lawyer or in another safe place such as a safety deposit box.  Do not keep your Will at home.  If it is lost and cannot be located on your death, there is a presumption that you destroyed the Will with the intention of revoking it, absent evidence to the contrary.  It is important to inform your executor and/or spouse of where to find your Will.  You should also make your appointed attorney and proxy aware of where they can find your Power of Attorney and Health Care Directive.  You may want to consider giving your bank a copy of your Power of Attorney and your family doctor a copy of your Health Care Directive.  You will need to make sure that these are replaced if you make changes to any of the documents.  

If you have questions about your Will, Power of Attorney or Health Care Directive, or, want to create these documents feel free to contact Megan Lorenz for assistance.