Along with a will, there are three other separate free-standing documents you need to have to protect your family: two types of powers of attorney (financial and medical) and a living will, also known as an advance care directive.
Many people think they don’t need a power of attorney because they have a will, but a will doesn’t take affect until an individual dies, says lawyer Les Kotzer of Fish & Associates in Toronto.
The following advice is for Ontario only. For other provinces, contact a lawyer in your area.
Powers of attorney (POA) offer protection when an individual is alive but is deemed incompetent and unable to handle their own financial or medical affairs.
Without these financial and medical powers of attorney, the government may step in and freeze your assets and make your financial and medical decisions for you. And no one wants that.
That’s why it’s important, Kotzer says, to have your POAs prepared now when you are competent. He says everyone over the age of 18 should have both types of POAs, with medical POAs covering both mental and physical incapacity.
Some people have a POA that names someone they trust to act on their behalf should they become mentally incapacitated. However, the medical POA should also include physical incapacity.
As an example, Kotzer tells the story of a woman who has multiple sclerosis. She is mentally competent but is unable to sign her name. If the POA covered only her mental incapacity, her appointees would have difficulty acting on her behalf.
In a first marriage, in most cases spouses who trust each other appoint each other.
In another case, a man in his late 50s had a stroke. He and his spouse were listed as joint tenants on the title of their house. The matrimonial home is often in the names of both spouses as joint tenants. However that doesn’t mean that one spouse can sign the other’s name without a financial power of attorney, for example to refinance or sell the house. Having joint ownership means the other will get ownership upon death.
If a doctor declares you mentally incompetent, if you have a POA, all the person you appoint has to do is tell the government you have a POA, sign some forms and the government will relinquish control.
An encompassing POA, which is what Kotzer says he and lawyer Barry Fish call the document provided in their Power of Attorney kit, is like an umbrella that covers all assets until death, when the will takes over.
The living will, or advance care directive, is an important document that outlines your medical wishes.
Kotzer and Fish created a financial and medical power of attorney kit that you can fill out at home. The documents are not online. They are paper copies that can be witnessed by two friends or neighbours. The kits are available for $50 each plus tax and shipping. Visit powerofattorneyinfo.com or call 877-439-3999 for information.
Kotzer also has videos about wills and powers of attorney on his website at www.leskotzer.com.
POAs should be kept at home for easy access in case of an emergency. Tell your family where they are.
The financial Power of Attorney kit also comes with a wallet card that is considered a legal document. If you get into an accident, the doctor will see you have a POA and contact the person you have listed.