Wills and Power of Attorney

By David Crothers B.A., LL.B

If you are finally leaving the workforce to enjoy all that life has to offer, the biggest change will probably be relocating from your family home to an adult lifestyle community, condominium, or townhome with amenities to suit your new life.

Naturally a life change of this nature is pretty significant which helps to explain why those who do move to a retirement dwelling, do so after months or years of thought and debate. While researching the best retirement property, you will have read countless articles, done extensive online searches, and sought the advice of real estate professionals. Any decision to leave a family dwelling is also an excellent time to revisit a will, power of attorney, or estate planning issues.

When people ask me to represent them for the closing of an adult lifestyle community, often I'm surprised at how few people take the time to review their current estate planning matters, or see value in having a will and/or power of attorney revised. I always advise my clients to do this every five years to gauge whether documents accurately reflect current wishes and intentions. It's also important these items stay in tune with an individual's health status and financial goals.

If a person owns property, then they should have a current and valid will at all times. It's important to ensure that you have appointed the right person, your "trustee", to take responsibility for distributing your assets to whom you choose as your "beneficiaries". With certain exceptions, if you do not have a will there may be situations where the government will be required to act as your trustee. Without a will, the appointed trustee is required to follow rules for distributing

your estate. These rules are rigid and it is possible that the "pecking order" of distribution required by law in this circumstance could be contrary to your wishes. In certain situations the government has actually taken possession of a property.

If you don't have an updated will, there can also be delays in the trustee distributing your estate, which can lead to substantial legal costs. For example, the province of Ontario almost always requires a court appointed trustee when a property is being sold. The process of becoming the trustee of the estate is what is known as "probating" an estate. The person charged with the responsibility of dealing with your property applies to the court to become the official trustee so that they are vested with legal authority to sell any real property. With a properly drafted will the process is almost always straightforward and the granting of probate by the court is usually a matter of course. Without a will, or with an improperly drafted will, the person applying to become trustee may need to post insurance bonds, there could be delays in becoming trustee, which can result in unpaid expenses for the estate such as property taxes, mortgage payments, and credit card payments.

The need for proper power of attorneys is just as important. An "attorney" for your property means that while you are alive your chosen representative, or attorney, has the right to deal with your financial affairs or health care and treatment issues, should you be incapable of making such decisions yourself. A financial power of attorney is important, as it puts a plan in place for dealing with your banking matters, signing contracts, buying or selling real estate on your behalf, should the need arise ever arise. It could be as simple as you being away from home on a trip overseas and should there be a need to deal with financial matters at home while you are away, the attorney steps into your shoes to take care of these matters.

A health care attorney is a separate document from a financial attorney and deals with your requirements for, or refusal of, certain types of medical treatment, the manner or locations in which you wish to be cared for, even things such as the kind of food that you wish to have or clothing that you wish to wear, in the event that you cannot make these decisions yourself. Having this power of attorney in place can bring peace of mind to family members, as there will be clear directives from you for your care.

Major changes or events in life can be exciting and rewarding, and the purchase of a new home is certainly that. But think of it also as a time to recognize the bigger picture. Reviewing your will and power of attorneys periodically can help you plan properly for many of the life changes we all face.

David Crothers is a lawyer with his own practice in Mississauga. David can be reached at david@ davidcrothers.ca. His practice areas are residential and commercial real estate, business law, and wills/estate administration.