Your lawyer plays a vital part in the estate planning process. Three critical protections are obtained from your lawyer: your Will (through which your estate passes to your heirs and beneficiaries) as well as Powers of Attorney for both Property and Personal Care (to protect you against the consequences of a mental incapacity).
The Will planning process is an essential step in estate planning. Whatever assets and items of sentimental value you do not use or distribute during your lifetime are typically dealt with through your Will. There can be serious consequences for the families of someone who dies before making a Will. Without a Will, a Court application may be required to enable others to have legal authority to administer the estate of the deceased, pay the debts, and pass on the inheritances to the next of kin. This extracts a cost in both time and money. Without a Will, you have no choice about the executor of your estate — this decision is left to a judge. You do not even decide who is to inherit from you — this is determined by the government.
Your lawyer will help you in the Will planning process, ensuring you have the most suitable executor, the clearest administrative instructions, and the best protections for your heirs. Anything less leaves a sorry legacy for your loved ones.
Powers of Attorney for Property are also important. In Ontario, if you have a period of mental incapacity, it is not your spouse or children who have authority to keep your affairs in order. Instead, the provincial government — in the form of the Public Guardian and Trustee — has authority over your finances. Nobody wants this, either for their own sake, or for the sake of their family’s struggle. The alternative is again an expensive and lengthy court application to replace the Public Guardian.
Powers of Attorney for Personal Care also provide valuable protection. Properly drawn, these identify and structure the people authorized to consent to medical decisions on your behalf if you are unable to make these decisions yourself. You can make legally binding medical decisions now that have legal effect in the future, even if at the critical time you cannot speak for yourself. The Personal Care Power of Attorney ensures these decisions will be both accurately communicated and properly carried out. Finally, the procedures that accompany these necessary documents can reduce delays in your obtaining medical treatment if you cannot speak for yourself.
In addition to providing expertise in arranging these legal protections, lawyers are also helpful in planning to reduce and avoid probate taxes, setting up trusts to control inheritances for vulnerable beneficiaries, and reducing income and capital gains tax consequences for you and for your estate. Your lawyer will also assist you in recognizing the need for input from other estate planning professionals, such as accountants and insurers.