By: Sheila Morris - Wills and Estates Litigator
We know 51% of Canadians do not have a will, and, of those who do, 35% have a will that is not up to date. Perhaps people are anxious about confronting their mortality, maybe they feel they do not have significant enough assets to require an “estate plan,” or it could be that they simply have not gotten around to it. But an estate plan does not need to be complicated. Here are four basic documents everyone should have:
1. Power of Attorney for Property
A power of attorney (“POA”) is a legal document that grants someone you trust, called your attorney(s), the legal right to make decisions about your financial affairs. In fact, your attorney will be able to do anything you can do except make a will, a new POA, or change beneficiary designations on documents like retirement or insurance plans.
In Ontario, there are two types of powers of attorney for property: a general power of attorney and a continuing power of attorney. A general power of attorney allows your attorney to manage your finances and property until you become mentally incapable. This type of POA is typically used for temporary or limited purposes, such as a real estate transaction or while you take an extended vacation. A continuing power of attorney, on the other hand, survives your incapacity. This type of POA can either become effective immediately upon signing, or upon a specific event that is set out in the document itself, such as a declaration of incapacity by a medical professional. If you do become incapable, your attorney will be able to do things like pay your bills, including healthcare expenses, and sell your house if your needs require assisted living.
A POA can be as general or as specific as you wish. You can appoint one or more attorneys, and you can require that they act unanimously or on a majority decision. If you become incapable of managing your affairs, and you do not have a POA for property, then a loved one will need to apply to the court for authority to manage your money and property. This can be time-consuming and expensive, and important transactions can be held up in the meantime.
COVID-19 has forced us to confront potentialities that we may prefer not to think about, but it is more important than ever to think about our own incapacity or end-of-life planning.
2. Power of Attorney for Personal Care
A POA for personal care grants someone (your attorney) the legal authority to make personal care decisions on your behalf if you become mentally incapable of making those decisions yourself. Personal care decisions relate to your healthcare, medical treatment, diet, housing, clothing, hygiene, and safety. There is an important distinction between these decisions: a health practitioner must have made a finding of incapacity in respect of decisions related to treatment, admission to a care facility, and personal assistance services. For other decisions, such as clothing and hygiene, a finding of incapacity is unnecessary so long as the grantor is incapable of making the decision.
As with a POA for property, your POA for personal care can be as general or specific as you wish. If you become incapable before you have made a POA, a loved one will have to apply to the court for authority to make decisions about your personal care.
3. Advance Directive
Canadians are living longer than ever before: the average life expectancy is 79.9 years for men and 84 years for women. An advance directive (sometimes referred to as a “living will”) sets out instructions for your attorney for personal care regarding your treatment. This document can be as general or specific as you wish; for example, you can include in your advance directive that you do not wish for any “heroic measures” to keep you alive. You can also specify treatment directions, such as “I want a respirator, but I do not want a feeding tube.” It is one way of making sure that your wishes and values are respected when you can no longer make those decisions for yourself, since your instructions will be binding on your attorney or other substitute decision-maker (unless it is impossible to follow your wishes at the time of the decision). In addition, courts have held that physicians and healthcare providers must also respect advance directives.
Although you can set out your wishes regarding your personal care in the power of attorney, your wishes may change over time. If this is the case, it may simply be easier for you to update your advance directive rather than comply with the legal formalities required to prepare and execute new POAs. An advance directive does not need to be written in any specific way, does not need to be witnessed, and you do not need to name anyone to act on your behalf.
4. Last Will and Testament
A will is a legal document that enables you to dispose of any property you own at the time of your death. A will is only valid when it is in writing, and it is signed at its end by the person making it (the “testator”) or by someone else in the testator’s presence and at the testator’s direction. The testator must make or acknowledge their signature in the presence of two or more witnesses who are present at the same time. Those witnesses must also sign the will in the presence of the testator. A testator may also make a valid will that is entirely in their own handwriting and signature, without any requirement for formality or witnesses. A handwritten will is called a “holograph will”.
There are many reasons to make a will; chief among them are determining who will inherit your estate, avoiding long and costly disputes after your death, tax savings, choice over your estate trustee, providing for dependants, and protecting minors.
It is important to make or update your will at various stages of your life. See “5 Critical Events that Impact Your Estate.”
It is also important to make or update your will if you have banked any genetic material or if you have digital assets.
Other Estate Planning Documents
Depending on your circumstances, you may benefit from other estate planning documents and tools, including trusts, which can help your estate and your beneficiaries save tax, manage distributions (which can be particularly important in the case of minors or anyone under a disability), preserve provincial disability benefits, and maintain privacy. Your best bet is to contact someone who specializes in estates law who can create a plan tailored to you and your needs.
If you have any questions or would like information on estate planning, litigation, or disputes, contact estates litigator Sheila Morris at firstname.lastname@example.org.
 Malette v Shulman, (Ont. C. of A.) 1990 CanLII 6868 (ON CA) ; Fleming v Reid, (Ont. C. of A.) 1991 CanLII 2728 (ON CA)
 Sections 3 and 4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”)