The COVID pandemic has many of our clients turning their minds to the matter of their estate planning. While we all hope for the best, preparing for the less-desirable outcomes can be a grim but prudent task. The experienced and capable wills and estates lawyers at Crease Harman can help you prepare a will or an advance health care plan.
Why have a will?
Preparing a will can be a mentally unpleasant task for many people. However, having a will in place, even for a modest estate, can greatly reduce the amount of paperwork and stress for your family and friends than if you pass away without a will. Engaging one of our wills and estates lawyers to prepare a will can put in place safeguards to ensure a smooth succession process.
A well-thought-out will is an opportunity to consider how to distribute your assets, who will assume guardianship of your children, and consider tax consequences. A will is an opportunity to protect your legacy and inheritance, and most importantly, spare your loved ones the unnecessary expense and delay that will result from passing away without a will.
Without a will, your estate will go into an intestacy. An intestacy means your estate is distributed in a one-size-fits-all manner that may not be in line with your wishes. An intestate distribution does not allow for gifts to close friends, neighbours or charities. Famously, James Dean, the actor, died without a will when he was 24 years old. His modest estate went to his estranged father, not to his aunt and uncle who raised him. Moreover, his father (and eventually his relatives) controlled the intellectual property rights of James Dean, which turned out to be worth millions of dollars over the years. As you can see, even an otherwise healthy 24 year old with modest assets would have benefitted enormously from having a will.
If you have children, you can appoint a guardian for your children in your will. Without an appointed guardian, any property that your child would be entitled to under intestacy rules will be held in trust by the Public Guardian and Trustee and may be subject to administration fees. A family member or a close friend can apply to become the guardian, but such a process will inevitably be more cumbersome and more expensive than if a guardian is clearly appointed in your will. In the process of preparing a will, our wills and estate lawyers can advise you on how to best protect your children’s interests.
Even if you have a will, keeping it up to date is equally important. An outdated will that makes gifts to friends you have long since lost touch with, or worse yet, appoints them as executors or guardians for your children is equally problematic to your close ones if you pass away.
A recent article from the CBC notes that in these times of social distancing, meeting the formal requirements for proper execution of a will can be a challenge. One of the requirements for executing a will is that it is signed in the presence of two witnesses who then sign the will. Understandably, trying to find a willing witness to meet those requirements can be a challenge in the current climate. Current BC law does not allow for virtual witnessing of a will over video conference.
At our Victoria office, we’ve come up with solutions to meet these legal requirements while observing social distancing guidelines. For example, we have had witnesses observing the will-maker signing the will from behind a glass window of our boardroom, allow the will-maker to leave the room, and then allow the witnesses to enter the room one at a time to witness the will. Proper witnessing and execution of a will is possible with precautionary measures in place.
There are other options for people in quarantine or in isolation who are unable or unwilling to take part in these arrangements. Section 58 of the BC Wills, Estates and Succession Act allows a court to declare that a will be effective despite deficiencies in the formal requirements of a will. Documenting the current circumstances in a letter explaining the reasons for the formal deficiency is good precautionary step. Once the current crisis passes, you can execute the will in the proper manner.
Advance Health Care Planning
Planning for healthcare emergencies
There are several steps you can take in preparation for a health emergency in case either you or a family member needs emergency health care. Not having a clear substitute decision-maker in place in the event of a health care emergency can put a strain on health care workers as they scramble to try to identify a decision-maker for you. They may have to document emergency consent to provide the necessary medical care, which takes time and resources away from health care workers in these times when they are already under a heavy workload.
1. Representation Agreement
First option is a Representation Agreement which allows you to appoint someone else to make important decisions on your behalf if you are incapable of making decisions for yourself. A Representation Agreement differs from a power of attorney in that it can be used for health care and personal care decisions, rather than only for financial decisions. With a representation agreement in place, a trusted individual of your choice, who is knowledgeable about your wishes and personal circumstances, can make health care decisions for you when you are incapacitated.
2. Advance Directive
An Advance Directive is another type of legal document that can help you prepare for health care emergencies. A Representation Agreement appoints an individual to make appropriate decisions for you in the event you cannot make those decisions yourself. With an Advance Directive, you can set out the specific health care decisions you want to implement if you are incapable of giving those health care instructions at the time health care is needed. If you have a Representation Agreement and an Advance Directive in place, your appointed representative is required to consider your instructions in the Advance Directive as an expression of your wishes unless the Representation Agreement requires your representative to act in accordance with your instructions in the Advance Directive. An experienced lawyer in our Victoria office can assist you in sorting out these details.
3. Temporary Substitute Decision Maker
You may also consider completing a list of Temporary Substitute Decision Makers. A list of TSDM consists of individuals that you choose to make health care decisions for you but the order in which people on the list are approached is predetermined by law. If you have a specific individual in mind to make decisions for you, a Representation Agreement is the better choice.
One of our lawyers can advise you in which of these legal documents will be best suited for you and your health care needs. In these times, having an advance care plan is another way to support our health care workers by lessening the administrative burden on them.
Contact Crease Harman to speak with one of our lawyers today.