1. Will Week
Not-so-random Acts of Kindness

2. Estate Planning For Your Future

3. Estate Planning For Your Future includes:
Powers of Attorney
Health Care Directives
Wills and Estate Administration
Closing Comments
There are 3 legal documents that all adults should consider- POA, HCD and a Will.
The presentation will begin with the documents that take effect while you are still living – HCD and POA’s – and continue with a discussion concerning Wills and estate administration.

4. Powers of Attorney

5. Powers of Attorney What is a POA? What is an Enduring POA
Requirements for an Enduring POA
Reasons for making a POA
Considerations
Do’s and Don’ts

6. Powers of Attorney “POA”
A legal document in which one person “donor” gives authority to another person “attorney” to make decisions regarding some or all of the donor’s financial and legal affairs
Only in effect during the lifetime of the donor – there is no authority after death
● TYPES OF POWERS OF ATTORNEYS
1) Immediate
2) Springing- Comes into force on the occurrence of a specific event. Most often used to plan for extended absences or the possibility the donor becomes incompetent
3) Bank
4) Enduring

7. Enduring POA’s
A POA that includes a clause that allows the POA to continue in force even after the donor becomes mentally incompetent
If made after April 1997 must comply with The Powers of Attorney Act
An Enduring POA is a very powerful document and therefore it is required that one of these professionals witness the signing of the document in part to protect against the forced or inappropriate execution of these documents.

8. Enduring POA Requirements
Donor must be mentally competent
Must be in writing
Must be signed and witnessed by one of the following:
Lawyer
Notary Public
RCMP or Municipal Police Officer
Physician
Judge, Justice of the Peace or Magistrate
Person authorized to solemnize marriages
Most POA’s now include an enduring clause as the possibility of future incompetence is the main reason that people create POA’s.

9. Reasons for making a POA
Allows you to choose who will manage your property and financial affairs for a specific or extended period
Helps plan for a time when you may not be able to make decisions
Provides peace of mind for yourself and those you care about to know your wishes
Avoids time and expense of a Committeeship Application
A private Committeeship Application will have to be brought to Court when an individual is unable to look after his or her financial affairs and there is no Power of Attorney in place.

10. Considerations
Will you name one or more attorneys and/or name an alternate?
Should the attorney be paid for acting?
How broad or limited will the authority of the attorney be?
Will you provide individual(s) with the authority to request and receive an accounting from the attorney by naming the individual(s) in the POA?
These considerations are very important and should not be taken lightly.
As a general rule, it is a good idea to have more than 1 attorney since this individual may become unavailable, unwilling or unable to act. Having too many attorneys may cause problems, especially if the attorneys have different beliefs and philosophies concerning financial issues.
You can provide as much or as little power and authority to your attorney as you are comfortable with. However, you should make sure you provide enough authority to your attorney to enable the attorney to look after your affairs when you are unable to do so. This is an issue you should discuss with a lawyer.

11. Considerations (Continued)
Although a spouse or common law partner may be named as an attorney, he or she cannot act as the attorney with respect to the shared residence (often called a “Homestead”) in which the donor and attorney both reside
Since a person cannot consent to the transfer of their spouse’s or common law partner’s interest in the Homestead, another person will have to be named as the attorney for the limited purpose of dealing with the Homestead

12. Enduring POA’s – Do’s Do consult with a lawyer
Do give careful thought to the attorney(s) you choose
Do talk to the proposed attorney(s) and anyone you name to receive accountings before signing the POA
Do inform those who need to know (attorney, bank, family) once the POA is signed.
POA have no use if no one else knows of there existence

13. Enduring POA’s – Don’ts
Don’t sign without getting legal advice
Don’t sign under pressure or if you are unsure
Don’t name someone you can’t trust or isn’t a good money manager
Don’t use a joint bank account instead of a POA

14. Health Care Directives

15. Health Care Directives
What is a HCD?
HCD requirements
When is a HCD in effect?
Considerations when naming a proxy
How does a proxy make decisions?
Do’s and Don’ts

16. Health Care Directives “HCD”
Often referred to as “Living Wills”
May name a person or “proxy” who can make health care decisions on your behalf
May include your specific wishes regarding health care
There are 2 main functions of a HCD – naming a proxy and expressing your wishes around health care treatment. You may do one or the other or both.

17. HCD Requirements
Recognized by Manitoba law, The Health Care Directives Act
HCD must be in writing, signed and dated
Maker must be over the age of 16
Maker must be mentally capable of giving informed consent to treatment
HCD must be brought to the attention of health care providers
The HCD must be in writing but it does not need to be in any specific form. The Manitoba government has created a form to assist in making a HCD but you do not need to use this form.
Extremely important that the HCD is accessible, since your wishes cannot be followed unless they are known!
Consider where you will keep your HCD so that it can be found and brought to the attention of health care providers when necessary.
Many seniors are including their HCD in their ERIK – Emergency Response Information Kits, which are to be posted on your fridge. These kits can be obtained through most senior centres. They are extremely helpful if emergency responders ever attend to an emergency at your home.
You may also want to consider keeping a copy of the HCD in your car, purse, etc.

18. When is a HCD in effect?
Maker does not have capacity to make decisions with respect to a proposed treatment – this is usually decided by a medical doctor
Maker is unable to communicate his or her wishes
HCD will continue in effect for the duration of the incapacity or inability to communicate
Remember that capacity is task specific so someone may have the ability to make decisions on some issues but not others.

19. Considerations when naming a proxy
Proxy must be over 18 and mentally competent
Proxy should consent to act in advance
Proxy must know your wishes, values and beliefs
Naming a proxy may be the most important aspect of the HCD. While it is impossible to imagine all of the possible treatment options that could arise in your life, it is easier (for most of us) to imagine the person or persons that we would trust to make those health care decisions.
Once you have decided who you would like to act as your proxy, talk to that person! Make sure that they are comfortable with acting as your proxy and that you discuss what your wishes are. Talk about other situations that you hear about through friends, family and even the media to consider what kind of treatment you would want in those situations. For example, the media reports about Terri Schaivo from the United States stimulated a lot of discussion for many families.

20. How does a proxy make decisions?
Decisions must be made in accordance with the wishes set out in the HCD;
If no specific wishes are expressed in the HCD then decisions must be in accordance with:
Any verbal wishes expressed while the maker was still competent and that the maker would still act upon;
Recent decisions made while still competent;
If no knowledge of wishes, then the decision must be in accordance with the maker’s best interests.

21. HCDs – Do’s Do talk about your wishes – with your proxy and family
Do give copies to your proxy, physician and family, if appropriate
Do talk to your physician if you intend to include statements about treatment
Do use clear and concise language when expressing your wishes
While your lawyer can help you as you consider making a HCD it is important to remember that lawyers are not health care professionals. Your doctor should help you determine the correct language to use in order to accurately reflect your wishes.

22. HCDs – Don’ts
Don’t put the only copy in your safety deposit box, or anywhere that it cannot be found
Don’t keep it a secret
Don’t use “legalese” or “jargon” when expressing your wishes

23. Wills

24. Wills What is a Will? When does it speak? Formal Will requirements
Why do I need one?
Is a lawyer necessary?
Holograph Wills
Who should consult a lawyer?
Considerations before meeting a lawyer
When should a Will be reviewed?
Do’s and Don’ts

25. What is a Will? When does it speak?
A Will is a written document that controls the disposal of a person’s property after death
A Will takes effect or “speaks” at the moment of death
Signing a Will does not prevent the disposal of assets during a person’s lifetime
As an example, if a person signs a Will gifting cottage property to a relative, this property can be sold or gifted to someone else during the person's lifetime without the consent of the relative. Upon the person's death, the Will is read as if no gift is contained within it and the relative does not receive the property previously disposed.

26. Formal Requirements for a Will
Document must be in writing
Maker of the Will must be over age 18, with some exceptions
Will must be dated and signed in presence of two witnesses
Maker of the Will must have testamentary capacity

27. Requirements for Signing a Formal Will
Will must be signed and dated
Two witnesses must be present when the Will is signed
Witnesses cannot be beneficiaries or the spouse or common-law partner of a beneficiary
Witnesses must be competent

28. What Happens When No Will?
Intestate Succession Act
Sets out a statutory plan for disposition
No provision charitable bequests
Statutory plan or formula is rigid
Although it is possible to create a valid Will without the assistance of a lawyer, caution should be exercised in doing so since a lawyer has the expertise and knowledge to provide a person with a Will that works best while protecting against consequences that may be unknown to someone without a legal education.
Since a Will is one of the most important documents a person will every sign, one should seek professional advice in preparing it. One small mistake can cost the estate a great deal of money or even invalidate the entire Will.
The role of a lawyer is to understand the instructions of the person wishing to make a Will and to put those instructions into a form of a Will that expresses the person's wishes clearly and is binding on all concerned. 28

29. What are the reasons for making a Will?
Personal wishes and estate planning
Costs related to not having one
Property distribution
Charitable bequests
Trusts
Wishes concerning guardianship of children
Blended families
Loved ones
Personal wishes – A Will helps ensure personal wishes are followed with minimum expense and delay.
Costs – If a person dies without a Will, the Court will require the appointment of an administrator to settle the estate.
Estate Planning – A Will can help arrange property to maximize benefits of the estate by deferring capital gains and tax obligations. A Will may also help ensure the succession of ownership and control of specific estate assets, including houses, cottages and businesses.
Property Distribution – If a person dies without a Will, his or her estate will be distributed according to inflexible provisions of the law with no consideration for the person's wishes. The law provides benefits to close relatives only, and the person's property will not be provided to friends, distant relatives and worthy causes supported in the past. The distribution of personal effects and family heirlooms, as well as debts owed to the person may also be dealt with in a Will.
Trusts – Trusts may be established in a Will in favour of a minor or a person under disability. A Will can also provide specific instructions for the establishment and administration of the trust.
Guardianship of children – A Will is also a way for a person to clearly state his or her wishes concerning guardianship of children. Although a Court must make the final decision on guardianship, instructions in a Will may be taken into account as a persuasive statement of the parent's preference concerning who should take care of the children.
Loved Ones – A will makes things easier for surviving friends and family members who are already suffering emotionally.

30. Is a Lawyer Needed to Prepare a Will?
A valid Will can be created without assistance from a lawyer (Holograph Will or Will Kit)
However, assistance from a lawyer is very beneficial and will help prevent problems relating to a person's estate after death
Although it is possible to create a valid Will without the assistance of a lawyer, caution should be exercised in doing so since a lawyer has the expertise and knowledge to provide a person with a Will that works best while protecting against consequences that may be unknown to someone without a legal education.
Since a Will is one of the most important documents a person will every sign, one should seek professional advice in preparing it. One small mistake can cost the estate a great deal of money or even invalidate the entire Will.
The role of a lawyer is to understand the instructions of the person wishing to make a Will and to put those instructions into a form of a Will that expresses the person's wishes clearly and is binding on all concerned.

31. What is a Holograph Will?
A Holograph Will is a Will written entirely in the deceased person's handwriting
Holograph Wills have advantages and disadvantages
An advantage of a Holograph Will is that there is no requirement for witnesses.
Disadvantages of a Holograph Will are that individuals will not be aware of the legal implications or consequences of his or her wishes and often prepare a Will carelessly without taking care to precisely express their wishes.
There are also disadvantages to using pre-printed will-forms or will kits that may be purchased at grocery stores and department stores.

32. What are Will Kits? Fill-in-the-blank Wills.
Wills prepared with the help of Will Kits may be valid, but are often associated with various problems.
Different sources of Will Kits are:
1) Computer products
2)Mail order
3)Off the shelf from supermarkets, department stores and pharmacies

33. Categories of people who should consult a lawyer
People with large, complex estates
People contemplating separation/divorce
People who get married or enter into a common law relationship
Seniors feeling family pressure
People wishing to avoid problems relating to the distribution of their estates
Everyone

34. What to do before meeting with a lawyer
List all family members and relationships of significance
List all assets
List all jointly owned assets
Consider contents and executor/executrix
Gather information on beneficiaries
Discuss plans with your family
Consider giving to a charity
Charities may include The Winnipeg Foundation, Heart and Stroke Foundation, Lung Foundation, Cancer Society or any other charitable organization you would like to support.

35. When should a person review his or her Will?
Every few years
Upon the existence of specific circumstances, including marriage, separation and contemplation of divorce and the birth of a new child

36. Wills – Do’s Do consult a lawyer
Do review your Will on a regular basis
Do keep your Will in a safe place – safety deposit box or in a vault at your lawyer’s office
Do let your executor know they have been chosen and where to find your Will
Do be aware that legislation may affect and impact your testamentary wishes
Relevant legislation is The Dependent Relief Act and Family Property Act.

37. Wills – Don’ts Don’t wait until it is too late to plan your future
Don’t sit back and think everything will work itself out
Don’t forget about tax implications, especially if you have substantial assets in your estate
Don’t rely on Will kits as the means to distribute your estate
Don’t wait until its too late – planning for your future begins as a young adult and should evolve as you age. It is not something you should hold off considering until you approach your senior years. In life, anything can happen so you should plan for the “what ifs”.

38. Estate Administration

39. Estate Administration
Personal representative for an estate
Duties of personal representatives
Do’s and Don’ts

40. Personal Representative
The term “personal representative” is often used as a generic term for an executor or an administrator for the estate
Probate is not always necessary
Generally, the nature of the assets determines whether probate is required
Executor
● When a person dies leaving a Will, the executor/executrix named in the Will may have to probate (prove) the Will before proceeding to administer the estate
● If the Court is satisfied that the Will is valid, it will grant letters of probate authorizing the executor/executrix to settle the estate
Administrator
● When a person dies without a Will or there is no executor/executrix willing or able to administer the estate, anyone may apply to the Court to administer the estate
● The administrator must reside in Manitoba and may have to purchase a commercial bond to ensure the proper administration of the estate
Necessity of Probate
Probate is necessary when:
1) real property (residence and/or land) and publicly traded securities are registered in the sole name of the deceased;
2) there is significant insurance payable to the estate;
3) there are issues concerning the validity of the Will.
● Probate may not be necessary when the deceased’s assets:
1) are located in a small bank account;
2) consist of Canada Savings Bonds;
3) consists of shares in a private corporation.

41. Duties of Personal Representatives
Funeral arrangements/ expenses
Dealing with assets and debts
Dealing with taxes
Sending out notices relating to the estate
Addressing legal issues
Settling the accounts and fees charged to administer the estate
Distributing the estate
Funeral arrangements/expenses - The personal representative has the authority to pay reasonable funeral expenses from the estate. Expenses may include costs for funeral services, burial and headstone for the deceased.
Dealing with assets and debts - The personal representative must take into possession or control all assets of the deceased’s estate. All debts of the deceased must be paid and all debts owed to the estate are to be received. The personal representative must advertise for creditors to notify all creditors of the estate that the estate will pay lawful claims against it. Claims of creditors have priority over the beneficiaries.
Dealing with taxes - The personal representative is responsible for ensuring final tax returns for the estate are filed and that income tax owing is paid. You should contact the deceased’s accountant or the Canada Revenue Agency for assistance.
Sending out notices relating to the estate - The personal representative must give notice, within 30 days, to a spouse or common-law partner of the deceased pursuant to The Family Property Act. This notice advises a separated spouse or common-law partner that they have 6 months to make a claim against the estate for an equal division of marital property.
Addressing legal issues – The personal representative must continue or bring legal actions on behalf of the estate and defend claims brought against the estate. Legal proceeding may be brought against the estate by former spouses and common-law partners and dependants of the deceased in certain situations.
● Settling the accounts and fees charged to administer the estate – The personal representative must keep records of all funds collected or distributed from the estate. An accounting should be provided to the beneficiaries along with administration and legal fees to be charged to the estate prior to distributing all of the estate funds. If the residual beneficiaries do not approve the accounts provided and the fees to be charged, the personal representative will be required to bring forward a court application to approve the accounts and fees.
Distributing the estate - After all the assets of the estate are brought in and the debts and claims against the estate are settled, the remaining assets may be distributed to the beneficiaries. An asset may be provided to a beneficiary prior to the debts being satisfied, however, if there are not enough funds to satisfy all of the debts in the Will, the gift may be reduced according to established rules in place.

42. Estate Administration-Do’s
DO evaluate the potential down-side of acting as a personal representative before agreeing to act
Do obtain legal advise before deciding whether to administer an estate
Do hire a lawyer to assist with the procedures and legislation concerning estate issues that may arise over the course of the administration
Do keep accurate, organized records with respect to all aspects of the administration of the estate
● Administration of an estate may be lengthy and there may be problems relating to the estate and/or the beneficiaries (eg. potential litigation involving the estate, insolvency, complex dynamics of the estate and family issues).
●Hiring a lawyer and keeping proper records are extremely important to the administration of an estate.
●The Probate Court is very particular with the documents it accepts and there are many rules, procedures and laws that are related to the administration process. A lawyer will assist in dealing with and avoiding legal issues that may arise over the course of the administration.
●It is necessary to keep detailed and organized records concerning the financial aspects of the estate since you will have to provide an accounting to the beneficiaries and may be required to apply to the court to approve the estate accounts and fees charged relating to the administration of the estate.

43. Estate Administration-Don’ts
Don’t agree to become administrator if you do not have the patience or abilities to carry out the duties involved
Don’t agree to be appointed personal representative if you are unable to reach agreements and resolve matters with other individuals appointed and/or beneficiaries
Don’t take your duties lightly
●A personal representative may be found financially responsible for errors and failing to act

44. Closing Comments

45. Closing Comments Concerning Estate Planning
Estate planning documents can be prepared by a lawyer for a reasonable price
Planning your future should not wait until a specific stage in your life
Planning your future will ensure your wishes are followed and save your family extra expense and aggravation
● Be aware of the potential for financial abuse
●Pressure or undue influence to sign Power of Attorney, Will, Health Care Directive or other financial/legal documents such as transfers of land or joint bank accounts
● May be prevented or minimized if proper documents are in place such as a Will, Power of Attorney and Health Care Directive

46. Resources
Seniors and Healthy Aging Secretariat, Manitoba Health, Seniors and Active Living
– A Legal Information Guide for Seniors.
To receive a copy please the Office of the Public Guardian and Trustee at
Seniors Abuse Support Line is a confidential information and referral service provided through the Seniors and Healthy Aging Secretariat. If you have concerns that an older adult is being abused or taken advantage of financially, emotionally, or physically you can call this line for information on the resources that are available to help. It is not a 24 hour crisis line but you may leave messages after hours.
You may obtain a Legal Information Guide by calling the Seniors & Healthy Aging Secretariat at the Seniors Abuse Support Line.
You may obtain copies of the Public Guardian and Trustee guidebooks by calling the Public Guardian and Trustee’s Office

47. Resources (Continued)
Public Guardian and Trustee Guidebooks – Enduring Power of Attorney and Committeeship
Lawyer Referral Line: or toll-free
Seniors Abuse Support Line:
(24 hours a day)
You may obtain copies of the Public Guardian and Trustee guidebooks by calling the Public Guardian and Trustee’s Office or on the Public Guardian and Trustee’s Website
Seniors Abuse Support Line is a support line that provides confidential telephone and follow up support to older adults who are living in the community and are experiencing abuse (emotional, physical or financial) or neglect. If you are concerned about an older person please call to speak with a highly trained counsellor. The line is operational 24 hours a day.

48. Contact details for more information:
Public Guardian & Trustee of Manitoba
Phone:
Website:
The Winnipeg Foundation
Phone:
Website: