5 Myths about Wills and Powers of Attorney
April 3rd, 2016
Contributor: Stephanie Okola, B.Sc, LLB
Lawyer,Notary Public and Mediator
A will is probably the most important document you can and will ever sign. It is a snapshot of your assets, your debts and your wishes for the distribution of your estate when you are no longer around to explain them. Similarly, Powers of Attorney are important because they can outline the decisions that a substitute decision maker, or ‘attorney’, can make on your behalf if you are unable to do so yourself. This article will touch on the 5 myths about Wills and Powers of Attorney, and why it is so important to have them properly drafted. (Please note that this is for informational purposes only, and does not constitute legal advice. You should always seek the confidential advice of a lawyer who specializes in Wills and Estates prior to preparing a Will or Powers of Attorney.)
- You don’t need a Will if you don’t own anything monetarily valuable:
False. A properly drafted Will outlines your personal estate, whatever it may be comprised of. It contains information about the assets you own and how they should be distributed in the event of your death. An asset can be something as simple as a special piece of jewelry, to something as financially significant as RRSPs or savings. It also contains information about the debts you owe, and how they should be paid out of your estate. Your Will is effectively the roadmap by which your executor distributes your estate according to your wishes.
- Your Will is valid even if it is not witnessed:
False. According to Ontario law, for your Will to be valid, it must be signed by the testator (yourself) and at least two witnesses. This is extremely important, as the process of confirming the validity of a Will if it is not properly executed is both time consuming and expensive.
- Getting a Will drafted is expensive
False. There are several excellent Wills and Estates lawyers in Ontario who charge reasonable rates to draft a simple will. There are also templates available free of charge on the Ministry of the Attorney General website that can be used as a guide to drafting your Will yourself. That being said, having a properly drafted Will is extremely important, and having a good lawyer draft it can make a world of difference. Overall, it’s value will outweigh the cost significantly.
- I only need a Power of Attorney for Personal Care if I am ill:
False. A Power of Attorney for Personal Care designates a substitute decision maker in your stead in case you ever become mentally incapable of making your own decisions relating to personal care. In effect, it protects you and the important decisions about your body and your health if you ever lose the ability to do so yourself. The law says that health care providers such as doctors and nurses must get the consent of your substitute decision maker before they make serious decisions about your medical treatment.
- A Power of Attorney for Property allows your attorney to control everything:
False. A well drafted Power of Attorney for Property can give your attorney the power to make specific decisions with respect to your property if you become incapacitated, or if you are unable to do it yourself for some other reason. For example, if you want to give someone the power to pay your bills from a specific account if you are in hospital undergoing surgery, but not permission to use the account for any other purpose, you can do just that in a Power of Attorney for Property. It can be as broad or as narrow as you need it to be. A caution, though: A Power of Attorney for Property becomes effective as soon as it is executed. If you would like to restrict it to certain times or circumstances, be sure you make that clear to your lawyer when they are drafting it on your behalf.
Stephanie Okola is a passionate litigator and advocate practising in the areas of Family Law, Wills and Estates, and Civil Litigation. She appears frequently before the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court (Appeals and Judicial Reviews), the Human Rights Tribunal of Ontario and the Health Services Appeal and Review Board. Stephanie is also an experienced mediator, focusing her mediation practice on community-based mediations and contested custody and access matters. She is active in several community outreach organizations, and sits on the board of the Women’s Legal Mentorship Program. She is a member of the Black Female Lawyers Network, The Family Lawyers Association of Ontario and The ADR Institute of Ontario.
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