Note: This is the second in a series of articles on the difficult conversations we all need to have with our loved ones.
In my first article, I suggested the place to start having the difficult conversations about illness, incapacity, and death with our loved ones is with a simple question: “What legal documents do you have in place?”
If you or your loved ones have essential documents (a Will, Power of Attorney for Property and Power of Attorney for Personal Care), that is great. If you or they don’t have these documents, get them in place as soon as possible. All adults over the age of 18 need those three documents, at a minimum.
I do recommend that these documents are completed by a lawyer, so you can ensure that they fit your situation. Everyone thinks they have a simple situation but that is usually not the case. And even if your situation is actually simple, there are often errors made in filling in the forms or in the witnessing of the documents by “do-it-yourselfers” that will render them invalid or change their meaning unintentionally.
In addition to ensuring the documents are legally valid and reflect your wishes, a lawyer will provide counsel to you about how to make the best decisions for you and your family. One of the decisions to make is who will do what in the event that you become incapacitated or when you pass away.
When someone passes away or becomes incapacitated without any documents in place, one of the hardest things for the family is figuring out who should (or can) take on a role. What could play out is family members fighting in court over who should be appointed or a complete failure of any member of the family to step forward to act.
If you become incapacitated, someone will need to make decisions about your health care (under your Power of Attorney for Personal Care) and your property and finances (under your Power of Attorney for Property). After your death, someone will need to make funeral and burial arrangements, pay your debts and file your taxes and distribute your assets and property (as your Executor or Estate Trustee).
Who will have each of those roles? You can appoint one person or more than one person for all those roles.
Some things to think about in selecting who will do what is:
- Where does the person live? If they are not local or are out of province, having them in a primary role may prove difficult (and costly).
- If appointing two people, can they work together? Should they perform every action together, or can one make decisions in the absence of the other? What happens if they can’t agree?
- Do you have a “back up” if you are only appointing one person?
- If you are appointing different people in each role (i.e. one person for Executor, another for Power of Attorney for Property, another for Power of Attorney for Personal Care), they will like have to work together. Can they work together? Do they have contact information for each other?
- What will other members of your family think if they do not have a role?
There are many other factors that you should consider but those are some practical questions that you should start with.
Once you have decided who should do what, it is important to ASK that person if they can take on the role before appointing them.
The next thing is to make sure the rest of your loved ones know why you have chosen this person. Some clients prefer to keep who they have appointed a “secret”, and I respect that decision. However, I do think things will go much more smoothly if there are no surprises and if all these difficult conversations (including who will do what and why) happen before illness, incapacity or death.
I will continue this series in my next column where you will find out more important questions to ask in the difficult conversations process.
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Michele R.J. Allinotte is the owner of Allinotte Law Office in Cornwall, Ontario and she helps her clients make the best decisions for themselves, their families and their businesses. Her practice focuses on the areas of business law, estates and estate planning and real estate. Visit www.YourCornwallLawyer.com to get her FREE Peace of Mind Personal Inventory to make sure that your family has all the information they need.