Preparation of Wills and Powers of Attorney prepared under the 1995 Substitute Decisions Act

Preparation of Wills and Powers of Attorney prepared under the 1995 Substitute Decisions Act
Date: 28 Aug, 2023| Author: Fred Streiman

We at Dale Streiman Law are often contacted asking for information with respect to preparation of Wills and Powers of Attorney prepared under the 1995 Substitute Decisions Act.

Whether you are a young or an older person, preparing Powers of Attorney and Wills is a necessary requirement for estate that that all clients must complete.. We stress this because we have seen so many times the mess that is left behind when an individual doesn’t take care of their affairs and a family is left trying to put the estate assets and other issues in order.

This article is not about your Will, nor is it about preparing Powers of Attorney and not just using printed forms. Often clients obtained the kit form produced by the Ontario Government or other publishes using American law and not Ontario and Canadian law applicable to the assets and property and health of the clients here in Ontario. Wills are most important to ensure that if you have assets, they are left in a disposition or bequest of the testator or will maker’s only volition and decision so that other parties, family members will not challenge the provisions made in the Last Will and Testament of the client, the Will Maker. Secondly, if clients are elderly and have paid off assets, a house nowadays worth $950,000 to $l.5Million, and other assets, savings, bank accounts, investments, Tax Free Savings Accounts (TFSAs), pensions and Registered Retirement Savings Plans (RRSP’s) or if older than 71 years of age, Registered Income Fund (RIF), then it is important to have an Estate Plan and also to avoid the incurring of large probate fees, i.e. the child(ren) being appointed as Estate Trustee(s), Executor(s) under the parent’s Last Will to distribute and transfer the assets to the beneficiaries under such Will on the parent’s passing. Often with value of assets including real estate assets expected to increase in the Greater Toronto area and surrounding cities and towns, such probate fees can be exorbitant such as $17,000 to $25,000 more or less to get the child(ren) appointed by the Court as Estate Trustees to deal with and distributed the assets. Dale Streiman Law with its partners and staff specialize in an Estate Plan to reduce or eliminate Probate Fees. Please consult us if this is relevant. There are many other considerations, i.e. assets out of Ontario are not usually covered and recognized by an Ontario Will and we recommend to our clients that they get such wills where such out of Ontario assets are located provided in a Will prepared in such jurisdiction or country by a local lawyer. Naming a relative who lives outside Ontario raises the issues of posting insurance bonds with the court if application for probate of the Will is required.

As to the aforesaid Powers of Attorney for Personal Care/Health and for Property completed in Ontario under the 1995 Substitute Decisions Act, the estate planning lawyers will ensure that decisions made by the appointed attorneys of the family member will be followed. If not followed, examples have arisen when recently when a man suffered a brain aneurism, and his wife was put in the horrible position of having to decide whether to end all life support, effectively leading to the death of her husband. The husband should have made that decision himself earlier, and spared his wife the horror and guilt. How do we do that?

There are two kinds of Powers of Attorney (POA) that each client should have prepared and executed. The Property Power of Attorney for assets and property in Ontario is for financial matters. This Power of Attorney allows the appointed attorney to conduct all financial affairs, as if he or she were that person. This would help, for example, in a case where a person was disabled, physically or mentally e.g. Alzheimer’s disease or Dementia, and couldn’t sign cheques, sell property or manage their property. Otherwise if the client is disabled, the Public Guardian and Trustee of Ontario assumes control over the assets of a disabled individual. You may wish with such power of attorney to include restrictions and include these details in the legal document, i.e. this Property Power of Attorney.

The Property Power of Attorney for Personal Care or Health needs much consideration. This is where you need to think about all of the potential problems that could occur, and how you want to make decisions on what happens in advance if your health, physical or mental health deteriorates. We have a living will which can stated as follows: I do not wish to be removed from my residence regardless of the costs unless my appointed attorneys make such decision.

Further I do not wish to be connected to life support or be kept alive for any significant period of time if I am in a vegetative state or I am being kept alive by artificial means, unless there is a reasonable chance of my recovery such that I will no longer be in a vegetative state or kept alive by artificial means. Where there is no reasonable chance of recovery, I direct that I be allowed to die and not be kept alive by medications, artificial means or “heroic measures,” and I direct that any such medications, means or measures that would keep me alive in those circumstances be withheld or withdrawn. I do, however, ask that medication, means and measures be mercifully administered to me or medical or surgical procedures be taken to may shorten my remaining life. There s also medical induced death that has been recently in the news.

There are many considerations for this type of power of attorney for Personal Care and Health: for example Health care, nutrition, shelter, clothing and hygiene. At our firm if there are issues, we refer our clients to their family doctor, a psychiatrist/psychologist and doctor specializing in aging e.g. a Gerontologist available to review these issues with the client so that we might incorporate their desires into their Personal Care Power of Attorney.

Note if you do not have such power of attorney, there can be a panel of doctors at the hospital with a possible government official to make such personal care and health decisions in the absence of having such Power of Attorney for Personal Care and for Health decisions.

Please review the above and we will be pleased to meet with our clients to review their needs for estate planning.

480 Main Street North, Brampton, Ontario L6V 1P8
Office : 905 455 7300