At the time of death, property and other assets make up a person’s estate as discussed in article #2 in this series. The will directs the distribution of the estate and is carried out by the executor. If no will exists or is valid the estate is distributed according to the rules of that province.
Prior to death there are other key documents and decisions that need to be considered. These documents include the continuing power of attorney (POA) for property, the power of attorney (POA) for personal care, clearly explained (for Ontario) in this provincial government package. The decisions can include living accommodations and pre-planning funeral arrangements. Each of the above require a person or persons to oversee these activities when you are no longer able to do so or after your death. Selecting the right individuals for each role and also ensuring they understand your values and preferences is extremely important and also can be fraught with difficulties.
They right person is key.
Selecting the right person who is willing to assume the role at some point in the future can be challenging. When making this selection consider the additional stress this may place on those closest to you. For example, someone who has been involved in your caregiving, even if only on a part-time basis, may find it too difficult to also assume the executor role due to emotional and physical exhaustion. If you have adult children, you may prefer that they assume substitute decision-making roles during your life but if they live out of town, or raising young children, or experiencing their own health issues they may not be the most practical choice.
The power of attorney for property seems to cause the greatest conflict in substitute decision-making.- Unfortunately this poorly named document misleads laypersons to believe they now have discretionary power over the assets. In reality the individual is legally required to make decisions that reflect your wishes and values. Financial professionals have many stories about the attempted misuse of POAs. Requests to change investment strategies or to draw down the assets are unfortunately common anecdotes. Selecting trust worthy individuals to represent your decision-making is vital but it is equally important to help inform these individuals about your asset management values and priorities. One way to do this is to bring the individual into some discussions with your professional advisors as early as possible so their understanding of your choices is deepened and a relationship with your advisor is established. Your advisor will still ask to see you alone to help ensure there is no coercion and will continue to take instructions from you.
Always have a backup.
Selecting a backup person for each of these decision areas is also important. The unexpected could happen to the individual who is your first choice. Depending on the progress of your Alzheimer’s, you may be unable to update some or all of the documents, or be able to express your wishes fully. Different from a co-decision maker, a backup choice helps to ensure that the province does not need to assign a guardian to manage your affairs.
Wills present a unique circumstance if the executor or co-executor is unable or unwilling to perform their duties. Having identified a co-executor or a backup executor makes it relatively easy for your estate distribution to proceed. However, this is possible only if the person stepping down has not interfered (referred to as intermeddling) in any way with the estate prior to stepping down. This will require official documentation known as a renunciation of probate that confirms the resignation of the primary executor or co-executor.
Clarity is imperative.
One of the greatest gifts you can give yourself and those who care most about you is the selection of individuals who are capable of carrying out your wishes. This requires taking the time to fully inform these people about your wishes. This video from Australia provides insight on the importance of clarifying within a family who will assume the role of decision-maker for each decision-area as well as ensuring they are fully informed. Do not assume that anyone, including those closest to you, know what you want. The clarity of your direction will guide those making decisions on your behalf and help them feel confident they are fulfilling your wishes. If any disputes arise they will be able firmly clarify the reason for each decision. The official documentation is important but it is most likely to be fulfilled when your chosen representatives are informed in advance of your preferences.
Last Updated: 11/08/2017