Estate planning is about your life and the lives of your family members and loved ones. Proper estate planning can provide you with the security of knowing that you have adequately provided for family members and loved ones, that your estate will be distributed in the most timely manner possible, and that your personal and financial affairs will be properly managed if you become incapacitated for any reason.
Last Will and Testament
The first and most important step in protecting those you love is to make a Will. Your Will is the foundation of your estate plan. A Will is a legal document that directs how your property will be distributed following your death. If you die without a Will, your assets may not go where you intended.
Your Will should clearly indicate your wishes, be easily located and be verifiable by the Courts (probate). Your Will must clearly state who will be your executor - the person responsible for carrying out your last wishes and for filing paperwork, including your last income tax return. Your Will decides who gets your assets and at what age your beneficiaries will receive their inheritance. If you have dependent children, you should name a guardian. Your Will should also include instructions for your funeral arrangements.
When your Will is completed it should be stored somewhere safe and easy to find, such as in a fire safe or a safety deposit box. It is important that you tell your executor where your Will can be found.
It is a good idea to review your Will with your lawyer on a regular basis, particularly if there has been a significant change in your personal or financial circumstances. We can work with you to develop your Will so that it protects those you love in the event of your death.
Enduring Power of Attorney
An Enduring Power of Attorney is a legal document that allows you to appoint someone to make financial and legal decisions on your behalf, while you are unable to make your own decisions due to illness or injury. Your Enduring Power of Attorney is created at a time when you are capable of making your own decisions.
There are two options when drafting an Enduring Power of Attorney. The first option allows the person appointed by you (your attorney) to begin to make decisions immediately. You and your attorney both have control over your money. You can both write cheques, deposit funds and pay bills. In the future, if you are unable to make decisions due to illness or injury, your attorney takes over and makes decisions on your behalf. The second option allows you to create an Enduring Power of Attorney that doesn’t take effect until some future event occurs, which renders you unable to make decisions. This is sometimes referred to as a springing Power of Attorney, as it only springs into effect if you become incapable of making decisions. If you regain your ability to make decisions, you can always withdraw from your Enduring Power of Attorney.
It is important to remember that your money remains your money under an Enduring Power of Attorney. Your attorney has a duty to manage your financial affairs solely for your benefit. Your attorney must also keep accurate records of all of the financial transactions conducted on your behalf. We can work with you to set your Enduring Power of Attorney in place in the event you become incapable of making sound financial decisions.
A Personal Directive allows you to provide written instructions to be followed about where you will live, your health care decisions and the activities you will participate in, if you no longer have the mental capacity to make those decisions for yourself due to illness or injury. Your Personal Directive is created when you are still able to make your own decisions.
You should choose someone you trust to make decisions about your personal matters. The person you choose to manage your personal affairs is called your agent. A Personal Directive is different from an Enduring Power of Attorney in that an Enduring Power of Attorney allows someone you trust to manage your financial affairs, whereas a Personal Directive allows someone you trust to manage your personal health and lifestyle decisions.
Your agent does not become involved in your personal decisions until you need help, which is confirmed by a capacity assessment. If you recover, you can withdraw your Personal Directive and regain control of your own personal decisions.
We can work with you to set a Personal Directive in place in the event you become incapable of making decisions regarding your living situation, health and other activities.
Applications for Grant of Probate
When a person with a valid Will dies, they often have assets that they have gifted to their beneficiaries. The person named as their personal representative (executor) has the responsibility to administer the deceased’s estate.
If the deceased owned large bank accounts, real estate, investment portfolios, or other significant financial assets, the personal representative named in the Will must apply to the Court of Queen’s Bench of Alberta (Surrogate Rules) for a Grant of Probate. A Grant of Probate is the court’s direction giving the personal representative the legal authority to manage and distribute the deceased’s estate, including dealing with any financial institutions.
We can work with you to file a Grant of Probate. Please contact us with any questions you may have regarding Grants of Probate.
Applications for Grant of Administration
When a person dies without a valid Will (intestate), an application can be made to appoint an administrator for the deceased’s estate. A thorough search must first be conducted to locate any Will left behind by the deceased. If the search is unsuccessful, an application for a Grant of Administration can be made.
If the application for the Grant of Administration is successful, the applicant is granted the legal authority to manage and distribute the deceased’s estate, including dealing with any financial institutions. The Surrogate Rules establish that the surviving spouse or adult interdependent partner shall have the first priority to apply for a Grant of Administration. If the spouse or adult interdependent partner is deceased, or unwilling or unable to act, the children of the deceased may apply for a Grant of Administration.
When the deceased dies with a valid Will, but the personal representative is unwilling or unable to act, the court may issue a Grant of Administration with Will Annexed, which appoints a new personal representative to administer the deceased’s estate.
We can work with you to file a Grant of Administration. Please contact us with any questions you may have regarding Grants of Administration.
Applications for Adult Guardianship and Trusteeship
The Adult Guardianship and Trusteeship Act (AGTA) provides decision making options when an adult needs assistance or requires someone to make personal and financial decisions for them. The Act applies in situations where an adult has suffered some loss of capacity and does not have an Enduring Power of Attorney or Personal Directive in place. In that situation, a relative or friend may apply to the court to become the adult’s co-decision maker, or to become the Guardian (for personal matters) or the Trustee (for financial decisions). The Act allows for a range of supportive and decision-making options, from least intrusive to most intrusive, including:
Supported Decision Making Authorizations
An adult with capacity can designate a “supporter” to help them make decisions with personal matters, including health care decisions.
Co-Decision Making Orders for Personal Matters
These Court orders may be used where an adult is assessed as having a significant impairment, but can still make decisions with assistance.
Specific Decision Making Provisions
These provisions come into effect when an adult suddenly loses capacity and a health care professional believes the adult cannot provide informed consent on a health care or temporary placement/discharge decision, but the adult has no personal directive or guardian. The health care professional can select a relative of the adult to make a decision which is limited solely to the health care or temporary placement/discharge issue.
Urgent/Temporary Guardianship and Trusteeship Orders
These provisions apply to situations when an adult is believed to lack capacity and is in imminent danger of death, physical harm or financial loss unless someone immediately intervenes. In these urgent situations, the Court may waive notice requirements and grant a temporary order that must be reviewed within 90 days.
Guardianship and Trusteeship Orders
These Orders are for adults who have been assessed as being incapable of making their own personal and financial decisions. The application process allows for improved screening and information for potential guardians and trustees.
Temporary Protection Orders
The Public Guardian may apply for a temporary protection order where there is reason to believe that a represented adult is at risk of serious physical harm. In these rare and urgent situations, the Court may waive notice requirements, grant the Public Guardian temporary decision making authority and authorize the Police to assist the Public Guardian in moving the adult to a place of safety. Temporary protection orders expire after 30 days, unless otherwise ordered by the Court.
We can work with you to file for Adult Guardianship or Trusteeship. Please contact us with any questions you may have regarding either of these applications, and to find out which provision your situation calls for.