At Primeau Law, we create wills and powers of attorney, as well as providing the legal advice necessary to help you transfer wealth in an effective and efficient manner. We never forget, however, that these are also intensely personal issues. You can rely on our office to guide you through this important but daunting process.
What is the difference between a Will and a Power of Attorney
A valid, carefully planned Will helps secure your family’s financial future. It protects your assets from unwarranted taxation and limits potential probate fees payable by your Estate. Most importantly, your Last Will and Testament ensures that your Estate will be shared among those you have specifically chosen.
A Power of Attorney is a legal document that gives someone else the power to act on your behalf. This person is called your “attorney”. In Canada the word “attorney” usually does not mean lawyer, as it does in the United States.
- Your Power of Attorney for Care, which is similar to a Living Will document, empowers one or more trusted persons to make medical decisions on your behalf in critical circumstances, where you may be unable to provide informed medical consent.
- Your Continuing Power of Attorney for Property allows your attorney to help you manage your finances, for a specific time or when you become unable to manage them. A Power of Attorney allows your attorney to do anything you could with your property, if you were capable. “Property” includes your money, your home if you own one, and anything else you own.
Once we have your documents, we will meet with you. After our meeting, we will generally prepare drafts of the required documents for you to review, and will ask you to advise us of any required changes. Once the documents are in final form we can either arrange to meet with you to sign the documents.
Step One: Gather Information
In order to prepare wills, powers of attorney and other documents, you will have to provide us with information about your family, your proposed beneficiaries, your assets and your liabilities. We have provided you with a document to help you organize this information.
Information we require regarding your family and proposed beneficiaries will include full legal names, ages, places of birth, places of residence. If one or more of your beneficiaries have special economic circumstances or physical/mental health issues, you should advise us of these matters. As well, please provide us with the name, address and telephone number of any contact person who manages your assets.
The Law Society of Upper Canada’s rules regarding identification of clients require us to obtain contact information from you, as well as to obtain copies of two identification documents (typically, a current government issued document with a photo, and one other piece of identification such as a birth certificate, major credit card or other government-issued identification).
If you are a party to agreements which impact upon your ownership of assets, or your legal obligations to others (e.g. shareholders agreements, marriage contracts, separation agreements, co‐ownership agreements), we would appreciate it if you would provide a copy of the agreements to us or confirm that your instructions reflect the restrictions contained in such documents. As well, if your country of residence restricts or limits your capacity to dispose of your assets on death, please advise us.
All of the information that you provide to us is confidential.
Step Two: Make Decisions
The decisions which you need to make depend upon the goals you want to accomplish.
Preparing A Will:
If you (the “Testator”) are preparing a will, you will need to decide upon:
- Who the executor(s) (and alternate executors) are to be. The executor is the person who manages the assets of the estate, pays the debts of the estate, and distributes the remaining assets in accordance with the instructions set out in the will. If the will contains any trusts for beneficiaries, such as young children, the executor may act as a trustee of the trusts.
- Who the beneficiaries (the people or charities who receive assets under the will) are to be. If a beneficiary is young, you must decide at what age the beneficiary will receive control of his or her share of the estate, and who will be the trustee (if it is to be someone other than the executor).
You will need to consider whether you would like to leave the original wills with us and keep a copy for your review or whether you would like to keep the originals yourself in a safe place. If you decide to keep them yourself, turn your mind to where you would like to store those wills.
In preparation for your wills, you will also want to prepare a document that includes the names, locations, passwords, etc. for all of your online and electronically-stored data. Turn your mind to what accounts you might have, user names and passwords: banking, social media, e-mail, etc.
Preparing Powers of Attorney
If you are preparing property powers of attorney, you will need to decide who the attorney(s) is to be, and who you would like to appoint as substitute attorneys if the original attorney cannot act or refuses to act for any reason. You will need to consider whether you wish to leave the property powers of attorney with us for safekeeping until they are needed, or whether you wish to keep the documents yourself.
Since the power of attorney for property gives your attorney nearly full power and authority to deal with all of your assets in whatever manner your attorney thinks appropriate, when choosing an attorney you should consider the same factors (honesty, ability to invest and manage funds, etc.) as when choosing an executor.
You will want to consider whether you wish to appoint the same attorney to be your attorney for personal care, or a different person. Recall that these attorneys are appointed to make personal care decisions if you are unable to do so yourself, including end-of-life care.
Step Three: The Signing Meeting
Once you have reviewed the draft documents, we will meet with you to go through them in detail, make any changes you require, and, ultimately, sign all of the documents. Only when the will and powers of attorney have been signed will your wishes be legally effective.
Please note that Ontario law provides that:
- If a person marries (or remarries) after making a Will, that marriage automatically revokes the Will unless the Will expressly states that it is made in contemplation of marriage to the person whom the testator in fact married; and
- A final divorce after the date of a Will revokes all gifts to the former spouse and the appointment of the former spouse as executor or trustee. The Will is construed as if the former spouse had predeceased the
Step Four: Reporting To You
Following the signing meeting, we will report to you with copies of all documents which you have signed. We will confirm what original signed documents we continue to hold for you, and what you should do with any original documents which we are sending to you.
If you have any questions please do not hesitate to contact us for a more detailed explanation or assistance in determining how to structure your will and powers of attorney.
We can be reached as follows:
By telephone: 613-584-4884 (Monday – Friday from 9:00 a.m. – 4:00 p.m.)
By email: email@example.com
In person: 7 Alder Crescent, Deep River – lower level (Monday – Friday from 9:00 a.m. – 4:00 p.m.)