05/03/2018 0 Comments
Power of Attorney or Will: Be Sure to Meet Legal Requirements
It is important to plan well for your Will and get personalized legal and sometimes accounting advice first.
Wills, Power of Attorney and estate planning are matters to be taken very seriously. The Miskin Law Office prepares Wills and Power of Attorney for individuals in Ontario, Canada. This is done after a first meeting with a lawyer and the client to assess a client’s situation and needs in order to prepare the best document to meet the individual requirements and decision making wishes of the client. The purpose is to use estate planning to simplify future estate issues to ensure a smooth transition of assets which will reduce the need for future legal services and also plan for reducing taxes payable after death. We encourage clients to prepare wills that do not lead to family disputes which can ruin relationships and cost a lot of money. Where there already is an estate dispute we work with clients to resolve the issues sensibly and avoid costly court proceedings. If there is a dispute, mediation is a big part of our law firm’s range of services and we represent clients in Estate Mediation. Murray Miskin also acts as mediator in estate disputes. Estate litigation can be very costly and time consuming and we usually refer complex or unresolvable disputes to lawyers who specialize in such litigation. We are willing to mediate these disputes but we will no longer act for a party litigating these disputes. The best thing is to avoid disputes with estate planning and properly prepared legal documents. A Will is a document that you can sign with your binding instructions as to who will receive your assets after your death. It names an Estate Trustee (formerly known as Executor) whose responsibility after your death is to manage the estate in accordance with your wishes. You may also propose guardians for your underage children and indicate preferred funeral arrangements in your will. We often prepare specialized wills for people who have children with disabilities or special needs. Until your death the will may be revoked or changed so long as you are mentally competent. Minor changes can be done by Codicils which cost less than a new will. Wills should be redone immediately on a marriage break up. If you do not have a valid will the legal requirements of the law determine what happens to your estate without consideration of your preferences. This may be fine for many families where there are no second marriages, common law relationships, specific bequests or unusual preferences to be considered. If you are living common law or there are children of prior relationships involved it would be wise to obtain legal advice immediately.
A Power of Attorney for property is a document you can sign which gives power only in your lifetime over your assets to another person whom you may designate. That authority may be set up to be effective any time or only if you become incapacitated. It may be restricted to dealing with or not dealing with certain matters. You may have more than one person designated so both or either may sign for you. You may name alternates and specify whether the attorney has a right to be paid for what they do. It does not take away your own rights to sign on your own behalf. A Power of Attorney for Property which our office refers to as POA, is a critical document to have should you ever become totally incapacitated or suffer a loss of mental competence. A Power of Attorney expires on your death.
You may also sign a separate Power of Attorney for Personal Care where you authorize another person (again with an alternate) to make health care choices for you when you are unable to do so yourself. This is sometimes called a Living Will. In it you may state your preferences on treatment issues and life support questions. Many people who want these documents prepared have strong opinions on the possible choices their doctors and family members will have should they become sick to the point where they may have no hope of recovery and may become a burden on others. Some people do not want their next of kin to decide what to do but instead they may have a close friend or other relative they wish to involve in decisions. You may also name a doctor or type of doctor you wish to have assess you and give advice when critical decisions must be made.
We strongly emphasize the need to use a lawyer to prepare any of the above documents to ensure it is valid and does what you want it to do. Cheap Will and Power Attorney kits are available but pose a serious danger, in that, what you prepare will be invalid unless properly done following strict legal requirements. For the money you save doing it by yourself it is not worth the risk. In preparing these documents we always have a lawyer meet with you for as long as necessary to advise you and take careful instructions to make sure the document prepared is what you want it to be. We generally bill and expect full or partial payment by cash or cheque at the first meeting. It is important to have a fully qualified and experienced lawyer discuss your intentions with you to ensure that the will is done properly. We do not believe it is sufficient to give instructions to a member of the lawyer’s staff in a meeting, by letter or email, or by phone. It is important that the lawyer use their judgment to assess capacity issues at a meeting to prevent future disputes of wills. We sometimes require clients to get a doctor’s note on capacity ahead of signing a will. At a later meeting the documents are signed in accordance with Ontario legal requirements with the lawyer present to oversee, explain the document and discuss any last minute changes. In cases of complicated wills with unusual provisions or special requirements due to personal circumstances we may charge extra and we will let you know and decide how to proceed at our no cost or obligation meeting in advance of actual will preparation.
Our usual fees (including basic planning for the estate and including disbursements) are set out below with 13% HST added to any fee:
- Wills: One will $300, a pair for $500
- Codicils (Will Changes): Fee for one is $150, $250 for a pair
- Power of Attorney (POA): One document of each type is $200, a pair of each type are $300
These fees are USUALLY discounted when multiple documents are prepared. Typically you will save $50 or more per person by preparing a Will with a Power of Attorney or both types of Power of Attorney. Call for exact price details for your situation. Documents requiring unusual clauses and extra planning may cost more as well.
Where necessary, we will travel outside of our offices and in those instances our usual hourly rates for extra time and any major disbursements will apply to client accounts.
The above fees are discounted when multiple documents are prepared. Clients pay the fee on a first meeting to discuss wills and then the documents are reviewed and signed on a second visit. We usually store the original signed Will and give clients 2 copies. For Powers of Attorney we usually make 3 originals and the client keeps 2 and we hold the 3rd. We keep original documents in our heavy fire proof filing cabinet at our office until they are needed or signed out by the client. We encourage you to get your will done soon. Nobody knows when their will is going to be needed or when they may lose capacity to sign a will or power of attorney.
Some clients require personalized estate planning for their special situations. In some situations it is advisable to have more than one Will. We may refer you to accountants or other experts to help with planning. This will cost you extra to engage such professionals but probably save later costs in taxes paid by the estate and provide more structured plans for future generations to preserve wealth. We can assist you with up to date information about recent changes in the legal requirements of tax structures. Please call Shannon at Extension 112 (Press 3) for an appointment for a Will, Power of Attorney or Estate Planning. The first meeting is free and with no obligation to proceed with us. Plan carefully for the next generation.