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Legal Ease: Take stock of your wishes, revise your will/mandate

Labour Day has come and gone, the children are back at school, everyone is back at work, committee meetings are scheduled and retirees are registering for their favourite courses.

Now is the time to reassess and revise wills, mandates, powers of attorney, medical care directives, and any other instructions we want heeded.

Medical directives and end-of-life instructions can be difficult to think about as we age, especially with new scientific discoveries. In Quebec, new legislation will soon take effect increasing our options. A new registry in which our wishes can be recorded is scheduled to open in December. This will be especially relevant with regard to end-of-life instructions as these will supersede wishes expressed in our Mandates. Some of us prefer not to think about these things or to leave it to family members to decide when we no longer can. For those who wish to decide for themselves, this is the time to think about our mortality and our upcoming options.

Your Will might need to be reviewed. Keep in mind that if your capacity is ever assessed as lacking, it might be too late to revise your will. What to look at is who you have named as your liquidator (executor) and as your heirs and beneficiaries. Perhaps the person named as liquidator is no longer able to carry out the functions required or has moved away. Perhaps an heir or beneficiary no longer needs the money or is no longer in touch with you. Perhaps there is someone else you would like to remember. You might want to make or revise charitable donations, or specify how your estate is to be managed by your liquidators. In other words, if someone is to benefit from income and someone else from capital, as is often the case where children benefit from income and grandchildren eventually inherit the capital, do you want the investments made to aim at greater dividends or greater capital growth? If a
substantial amount is involved, it is always a good idea to consult with a financial advisor.

A Power of Attorney is usually provided to customers by their bank or investment company, and, in most cases, it has been signed without having been read. It should be reviewed as it may provide more power than you realize to someone else. Admittedly it can be helpful that another person can issue a cheque on your behalf in your absence or if you should be temporarily incapacitated, but you have a right to limit the amount of that cheque or to designate to whom such a cheque can be made. If the bank refuses to alter their form, a power of attorney suitable for your needs and wishes can be drawn up by a lawyer or notary. In such cases, the bank or investment company may submit the document to its legal department for approval before accepting it.

A mandate in case of incapacity is necessary to avoid others from naming someone who might not be your choice, or to avoid the appointment of the public curator to administer your assets and possibly make choices with regard to your health and welfare. Once you have the mandate, review it to make sure the person(s) named are still available to carry out the task, they are still your preferred nominees, they are aware they are your designated representatives and are still willing.

Review the powers you have granted and specific instructions. For example, have you told them what you want done with your furniture or pet if you have to move? Have you instructed them to continue the annual charitable donations? Have you expressed your wishes concerning birthday and holiday gifts? In some cases, it might be wise to consult with your financial advisor to help decide on the amount you would have available to provide such gifts. The mandate in the event of incapacity must be confirmed by the court in order to take effect. This means you will have been assessed as lacking the capacity to make these decisions for yourself. This may never happen to you but if it does, you can make sure that things evolve as you wish.

If you have not yet made your wishes known, I can only stress the importance of doing so and of keeping those wishes up to date.

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One Comment

  1. Sylvia Wedge says:

    Excellent information, as I was suggesting after your Contactivity talk. Seniors, in particular, need to be guided to get their wishes accurately recorded. An annual look at a will, mandate, etc is sensible, options can be discussed and any updates can be made. In this way it becomes a habit and less stressful to talk about end-of-life issues. Thank you for spreading the message.

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