Wills, Personal Directives, Power of Attorney, and Family Trusts

More so than ever it is important to invest time in preparing a Will! If you already have one in place, it may need further consideration and updating. We have extensive experience of dealing with Wills and Estate Planning.

Llewellyn Law can handle the preparation of these important documents:

Wills

In broad terms, there are two categories of Wills:

1. The first category, by and large, is a Will for younger people who do not have a significant estate, nor have significant tax issues on disposition of the estate on death, nor have tax planning issues.

2. The second category, by and large, is a Will for more mature people, who have accumulated significant assets, and may have tax issues on the disposition of the estate or have other tax planning issues. Such persons may have more considerations in respect of their Will.

Generally, a basic Will provides that on passing:

• a) the entire Estate is distributed to the Spouse.

• b) if the Spouse has predeceased, then the Estate passes to the children, in equal shares (and through them to their children if necessary);

• c) if there are no surviving children, or Grandchildren, then the Estate passes to the other closest next of kin, in equal shares.

However, here at Llewellyn Law we encourage our clients to “think outside the box”, for example consider:

• Should beneficiaries of an Estate (who are minors) receive their share of the estate when they turn age of Majority (which is 18 years of age in Alberta). Would they have the experience to deal with large shares of an Estate? Most likely not.

• Have you made provisions for how the executor/trustees will deal with “digital assets”?

• In a day and age where bankruptcy has become a realistic problem for many, would the bankrupt be comfortable with assets of the estate going to the creditors? If not, have you made necessary provisions for this situation?

Personal Directive

In addition to a Will, it is normal to prepare a document known as a “Personal Directive”, which empowers a named person to make decisions on your behalf regarding your health and welfare, when you may not be able to do so.

Generally speaking, Personal Directives are often in a “standard form”, however, the standard form may depend upon which person is doing the drafting.

There are many medical treatments which require “consent”, and a Personal Directive ensures that someone can give that required consent.

For some people, their Personal Directive can be tailored to specific instructions. For example, a personal directive may provide for the ability of the person with the power to “pull the plug” and provide guidelines as to when that should occur.

Enduring Power of Attorney

An Enduring Power of Attorney, sometimes referred to as a “Living Will”, provides authority to a named person or persons to make decisions about your personal affairs, while you are still alive, but only if and when you become incompetent and not able to do so on your own.

An example of such a circumstance could be regarding a parent with advanced Alzheimer’s (or another similarly disabling condition). Sometimes, however, incompetency arises unexpectedly from a motor vehicle accident, or some other form of illness. It is best to be prepared for anything.

The Enduring Power of Attorney will provide that the power shall only come into effect upon a written statement from one (or if you want, two) physician, to the effect that you are incompetent.

Generally speaking, an Enduring Power of Attorney is often in “standard form”, although these powers can also be tailored to the individual.

General Power of Attorney

A General Power of Attorney provides authority to a named person or persons to make decisions or to represent a person in respect of your personal affairs, when you are not able to be present to do so on your own behalf. This is regardless of competency or health.

Family Trusts

There are many reasons for setting up a family trust, first and foremost it protects an individual’s assets. It can also prevent estate litigation in the future.

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If you are seeking counsel to plan these important decisions, please consider contacting our offices.