Wills and Powers of Attorney

Last Will and Testament

Many people take for granted their ability to make their own decisions concerning their finances, property, health care and raising their children. What if something should happen to you and you are no longer able to make those decisions? Simply telling your friends and family what you would like or writing it down will not be sufficient to give them the legal authority to act.

Your Will is your written wishes as to how you want your estate (everything you own at the date of your death) to be dealt with and distributed after you die. If you die without a Will, your estate will be distributed on your death in accordance with the laws of the province in which you reside which is not necessarily as you would wish your estate to be distributed.  In Ontario, if you die without a Will neither you nor your spouse nor your next of kin have the right to decide how to divide up the estate. Your spouse will not automatically inherit all of your estate and neither you nor your spouse will have any say in how your estate should be divided among your children or at what age they should get their share. As well, without a Will, any distribution of the assets from your estate will be delayed until a year passes from your death.

A proper written Will allows you to specify how you wish your estate to be distributed. You also get to control the flow of the wealth of your estate to your children or other minors by establishing a trust. This allows the trustee you name to not only control the release of funds from the trust to take care of the health, welfare and education of your children, but also allows you to hold back and control payments from the trust until the child reaches a certain age or ages in the case of multiple payments. Without a Will, when a minor child turns 18, they have the right to demand the immediate receipt of their entire share of your estate.

If you die without a Will, then the person in charge of your estate will need to be appointed by the Court (called the Administrator of your estate). The Succession Law Reform Act dictates who can undertake that role and the order of who will be eligible to apply for that appointment (depending on relation). A written Will allows you to appoint someone you trust to be in charge of your estate (called the Executor of your estate). As well, your Will can grant additional powers to your Executor so they have more flexibility in dealing with your estate to the benefit of your beneficiaries.

If you are incapacitated and are unable to manage your own affairs, you will also lose your ability to make a Will or change your existing Will. Do not wait until it is too late to make a Will. With over 20 years of experience in assisting clients to structure their care and estate plans and incorporating those plans in their Wills and Powers of Attorney Dimitry Beluli can guide you through this complicated area and ensure your wishes are met.

What if I already have a Will?

If you have a Will, we recommend that you review it at least once annually. You should also review your Will when any of the following events occur to ensure that the Will still operates as you intend:

• The death of an executor or beneficiary
• Any change of circumstances of yourself, your executor or any beneficiary or person who is not a beneficiary that you may now wish to make a beneficiary
• You become married (as a marriage will usually revoke an existing Will)
• You become separated
• Your affairs or the tax rules change and you wish to address those changes in your will

If you are concerned that your current Will may not operate as your wish or if you wish to make changes to your Will, Dimitry Beluli can assist you in changing your will.

Power of Attorney

A Power of Attorney is a legal document that contains your written instructions and authorization for another person to make certain decisions for you and in your name. Unlike a Will that operates when you die, a Power of Attorney operates while you are alive.

There are two types of Powers of Attorney. The first type is called a Power of Attorney for Property (also known as a General Power of Attorney) will enable the designated person (wo we call the Attorney) to have control over your affairs by having the power to legally act in your name in all matters except for making a will for you (they cannot do that) or making health care decisions on your behalf (which is governed by the Power of Attorney for Personal Care).

The second type of Power of Attorney is a Power of Attorney for Personal Care. This enables the designated person (the Attorney) to make health care decisions for you when you are unable to do so. This includes decisions on your medical treatment as well as your care. You can structure the Power of Attorney to limit the decisions of your Attorney as well as give special instructions for your care, such as whether to keep you in your home for as long as possible and whether to take or not take heroic measures to keep you alive.

If you are incapacitated and are unable to manage your own affairs (either legally or with respect to your personal care), and you do not have a proper Power of Attorney, you will be dealt with in accordance with the law governing guardianship of people unable to manage their own affairs. Unless a suitable person agrees to be your guardian, the court will appoint the Ontario Public Guardian and Trustee as your guardian (for property or personal care). Having a written Power of Attorney permits you to specify who you wish to act as your attorney.

Having Powers of Attorney give you a voice for the handling of your affairs and your care when you are not able to. If you are held to be incapable of handling your affairs, you will also lose your ability to make a Power of Attorney. With over 20 years of experience in assisting clients to structure their care and estate plans and incorporating those plans in their Wills and Powers of Attorney Dimitry Beluli can guide you through this complicated area and ensure your wishes are met.