While creating a Will can ensure that your estate is distributed as per your wishes, it’s not the only document to consider when creating an estate plan.
A power of attorney (POA), is a legal document that grants a trusted person the authority to make decisions on your behalf or represent you to others. While powers of attorney vary across provinces, in general, they should provide a specific individual the authority to make financial or health-related choices for you should you become unable to do so.
There are two POA types:
• Power of attorney for personal care: a person who can make decisions about your health care and other aspects of your personal life.
• Power of attorney for property: a person who can decide your financial affairs (including paying your bills, selling your house, managing your investments and collecting money owed to you).
A POA must clearly state that you are granting specific powers to a trusted person. It takes effect immediately after you sign it and will have to be signed in the presence of witnesses (although there is some flexibility in the process with COVID-19 restrictions in place). Unlike a Will, a POA will only become relevant if you were to lose the capacity to make decisions. So the document may never actually be used. Think of it as an insurance policy, one that protects your family from having to make uninformed and difficult decisions that may lead to conflict or stress.
What happens if I don’t have a POA in place?
In light of COVID-19, power of attorney documents feel particularly timely. If you become incapacitated before you’ve created a POA you’ll have no control over who makes decisions for you while you are unable to make them yourself. As well, without the document in place, someone will need to be authorized by the court to manage your money and property, which can be expensive and time consuming.
A family member may be able to step in and make certain personal-care decisions for you, but if you haven’t written down your wishes, making these choices without guidance could potentially be a very distressing responsibility for loved ones. Having these documents in place will inform your family of both your financial and health-care related choices should certain situations arise.
How can I get my Will and POA signed during COVID-19?
While the recent escalation of COVID-19 in Canada poses unique challenges for people who wish to have their estate planning documents executed, many provinces and territories are enacting changes and new rules to assist the process. While the specifics of each change may differ across provinces and territories, here is a general summary of the current allowances.
Alberta, British Columbia, Manitoba, Ontario, Quebec, Saskatchewan, Yukon, and Newfoundland and Labrador will now allow legal professionals to witness the signing of Wills through the use of audio-visual technology.
In British Columbia, Ontario, Quebec and Saskatchewan, the virtual signing of power of attorney documents is also permitted.
In a few provinces, including Alberta, New Brunswick, Yukon, and Northwest Territories, holograph Wills — those written in the testator’s own handwriting and signed by them — are allowed with certain stipulations.
Currently, British Columbia is the only province to propose legislation that would make permanent the provisions on virtual witnessing of Wills, also including an allowance in the bill for the electronic signing of Wills.
As the Canadian government responds to the pandemic’s evolving needs, it’s important to seek out your province or territory’s specific recommendations and allowances to better navigate this changing section of the law.
Final thoughts
In the rapidly-shifting landscape of COVID-19, it is essential to equip yourself with the knowledge to protect your family and legacy if the unexpected does arise. There has never been a more important time to look beyond the challenges of physical distancing and shutdowns and execute a carefully considered estate plan.
1https://representingyourselfcanada.com/virtual-witnessing-of-wills-and-powers-of-attorney/
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