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Family Health Magazine
GROWING OLDER

Wills and Personal Directives
Planning for tomorrow

'I don’t need to plan for the future. My family will take care of me.'
Sometimes it is difficult for even the most caring family or friends to know your wishes. You can help them now by planning for the future. In return you can feel secure, not fearful, knowing you have planned wisely.

Planning ahead is important. A will makes sure your possessions will go to your family after you are deceased. You also need to give directions for your future health care, personal care and financial affairs. If you have an accident or illness, who will take care of these issues? Where will you live if you can no longer stay in your own house? How will you pay for these services? Who will help you? Will family or friends know what you would want them to do? You can prepare now in case of accident, poor health or decreasing memory. These plans need to be in place now, not ‘some day.’

To plan properly, you will need a will, a personal directive, and an enduring power of attorney. These legal documents are explained here in a general way, but this article is not intended to give you legal advice. Consult your lawyer or the sources listed in the resources sidebar for more information.

Why make a will?

Most people want to make decisions about where their assets will go when they die. Assets include a house, money in the bank, and personal possessions. Wills are important documents. Everyone needs a will. Review your will from time to time, especially if people named in your will have died. Revisions are also needed if there are changes in your life, such as divorce, separation, or the birth of children. If you don’t have a will and would like to make one, do it now. Start by choosing an executor. This is the person who will carry out your wishes after you have died. The executor must be someone you trust and respect. You can choose more than one, in case one person is unable to continue as executor.

The choice of a lawyer is also important. The lawyer will give advice on the best way to prepare your will. After your death, a lawyer will also help your executor in carrying out your wishes with the minimum of expense and delay. If you decide to prepare your own will, self-help books are available in the library and bookstores. All wills must be written down, signed, dated, and properly witnessed. Holograph wills (handwritten wills) are legal in Alberta, Manitoba and Saskatchewan but not in British Columbia. They must be dated, completely in the handwriting of the person making the will, and signed by that person.

What is a personal directive?

A personal directive (also referred to as an advance directive) is a legal document that gives you control over your future health care. It is used in case of an accident or when you cannot make decisions for yourself because you are incapable. Family and friends will feel more confident dealing with health care providers with a personal directive in place.

A personal directive is designed by you, with or without a lawyer. The agent, or agents, are chosen by you. They are people you trust, who will follow through with your wishes as outlined in the personal directive.

A personal directive communicates your wishes for:

• health care
• medical treatments
• who you would like to live with and where
• the type of activities you would like to be involved with.

You do not need a personal directive to receive care in a hospital setting or from a doctor. However, a personal directive allows you to plan your health care when you are well. This directive only comes into effect when your doctor fills out a document stating you are not capable of making any decisions for yourself. Another health care professional must also make the same statement. At that time, your agent will take over until you are capable again.

A personal directive will reduce stress for you and your family at a difficult time. With the help of your family doctor, social worker and other health care providers, your family and friends will be able to make informed decisions.

The Office of the Public Guardian (see sidebar) has self-help information available to help you through this process, along with sample forms. Your family lawyer can also help you prepare a personal directive.

What is an enduring power of attorney?

An enduring power of attorney allows you to plan your financial security before death. This is used if you become ill for a long period of time and cannot make decisions for yourself. By comparison, a will takes care of financial affairs after your death. With an enduring power of attorney, you appoint one or more people you trust to take care of your financial affairs if a time comes when you are unable to make decisions.

The enduring power of attorney document must be in writing, dated, and signed by you and witnessed by one other person. This document relieves your family or friends of much stress. They will have enough to do in worrying and caring about you. Plan for possible future problems this way.

Before the enduring power of attorney comes into effect, two medical doctors must each complete a document stating that you are not capable of making reasonable decisions. Your attorney (the person you have chosen to act for you) will take over. This person will be able to pay bills, deposit cheques, and do whatever financial business is required for the time being.

It is important to discuss the powers of the enduring power of attorney with a lawyer or to carefully read the explanation of necessary steps in the self-help kit available from the Office of the Public Trustee. (See list of resources.) The Public Trustee’s Office will also answer any questions you may have.

A brief overview of guardianship and trusteeship

Guardianship and trusteeship come under provincial legislation and the Court must be involved. When adults are deemed incapable, the process of finding who among family and friends will be most appropriate to become legal guardian and trustee begins.

Medical doctors involved fill out documents regarding the abilities of the person in question. The doctors are required to assess the person’s ability to care for self and whether the person can manage financial affairs. A lawyer will be required to apply to the Court for legal guardianship and trusteeship. A family member or friend hires a lawyer to complete this task.

If there are only pension funds available, there is a possibility that an informal trusteeship may be arranged through Income Security Programs. A Certificate of Incapability can be completed by a family member or friend, and the family doctor must sign it. Guardianship will still be needed.

If no one is suitable to be a guardian or trustee among family and friends, the Public Guardian and Public Trustee will be involved. They remain involved until the dependent adult dies. The Public Trustee and Public Guardian Offices can provide information on the process.

Plan well for your future: Steps for planning in advance

• Talk with your family and friends.
• Think about who would be the person or persons best able to act on your behalf as:
  - executor of your will.
  - agent for your personal directive.
  - attorney for enduring power of attorney.
• Plan to complete a will for your affairs after death.
• Plan to complete a personal directive explaining your wishes regarding your health care and personal care.
  
• Plan to complete an enduring power of attorney for your financial affairs before death in case you become incapable.

If you do not have these documents in place, then the legal situation becomes more difficult. Without these documents, the Court must be involved if you become incapable of making decisions. If a personal directive is not in place, guardianship is required. If an enduring power of attorney is not in place, trusteeship is required.