Planning for the Unexpected

Planning in advance for your death and potential mental incapability will give you some control over what happens to you, your dependents and your property. Most people prefer not to think about what may happen when they die or if they become incapacitated, but you need to consider the impact of these events upon your affairs and your loved ones. At Avery Law Office, we can help you plan for your future and discuss the benefits of the following documents with you.

Will

A Will is a legal document that sets out what should happen with all of your belongings upon your death. It is an important estate planning tool and it allows you to express your wishes for what is done with everything you own upon your death.
Examples of some of the instructions you can state in your Will include

• The name a guardian for your minor children
• The terms of a trust for your minor children or spouse
• The name a person or multiple persons who will be responsible for settling your affairs after your death
• The names of the persons, classes or charities who will get your possessions and under what circumstances

A properly drafted Will may also help reduce some of the taxes that need to be paid as a result of your death.

If you do not have a Will, there is no legal way for wishes to be known. You will have no say in the care of your minor children. If you die without a Will, you have died “intestate” and there is law which will set out who inherits your belongings. You will lose your control over the disposition of your belongings upon your death. If you have no successors that are legally recognized, all of your property will pass to the provincial Crown. The benefits of a Will are significant for both you and your loved ones.

Power of Attorney

A Power of Attorney is a legal document granting someone, the “Attorney”, the power to deal with your, the “Donor”, financial and legal affairs. The Attorney you appoint in your Power of Attorney acts as your agent and their power is limited to the power you choose to give them.

A Power of Attorney allows you to choose who will help you with financial and legal matters when you are unable to do so. A Power of Attorney can be used when you are physically unable to look after your affairs due to travel or injury. An Enduring Power of Attorney can be used if you become mentally incapable of handling your affairs due to illness, disease or accident; how-ever, it does not cover health care or personal care decisions.

A Power of Attorney is a simple and inexpensive way to plan for your future.

Advance Directive

An Advance Directive or “living will” is a written document that states your wishes for medical treatment if you are unable to express your wishes at the relevant time. It states the medical treatments that should or should not be given in certain circumstances.

You can refuse to provide consent for medical treatment and a health care provider must not provide you with medical treatment without your consent. In urgent or emergency situations, medical treatment may be required and you may be incapable of giving, refusing or revoking con-sent. In this case, with certain exceptions, the health care provider will turn to certain persons set out in law to make health care and treatment decisions. The health care provider should first seek direction from your Representative under your Representation Agreement or your committee appointed by a court. If you do not have a Representative or committee, or he or she is unable to act, the health care provider will turn to a temporary substitute decision maker for direction. The person who acts as your temporary substitute decision maker, often a spouse or adult child, is required to comply with the wishes expressed in your Advance Directive.

A health care provider is not to provide emergency care if they reasonably believe you completed an Advance Directive refusing consent to the treatment in accordance with law.

Nomination of Committee

A Nomination of Committee is a written document that expresses whom you would like to have act as your “committee” if a court finds that you are incapable of managing yourself, your affairs or both.
A near relative or other person known to you may make an application to a court declaring you incapable of handling yourself or your affairs due to mental infirmity caused by disease, age or otherwise. The director of a mental health unit or psychiatric unit may also find that you are incapable of handling yourself or your affairs. If such a declaration is made, a court will appoint a committee to handle your matters. The appointment of a committee will revoke an existing Power of Attorney and may revoke an existing Representation Agreement.

Unless there is a good reason to refuse, a court will comply with your Nomination of Committee provided certain execution requirements are met and it was made while you were of sound mind. A Nomination of Committee is a planning tool that can provide you with some control over who will make important decisions on your behalf when you are unable to do so.
Representation Agreement

A Representation Agreement is a legal document that grants someone, the Representative, the legal power to make health and personal care decisions on your behalf if you are unable to do so. This document can be brought into effect without the need for court proceedings. You will have the ability to generally and specifically identify the decisions your Representative can make on your behalf. Your Representative must follow your wishes. You can also give your Representative the ability to help you make decisions.

A Representation Agreement is a complex document requiring both medical advice and legal advice.

The information on this page is merely a guide and should not be relied upon for legal advice. It provides general information only. It is recommended that you see a lawyer about your particular legal situation.