Wills, Personal Directives and Powers of Attorney: What’s the difference?

A complete estate plan includes three documents: a Will, Enduring Power of Attorney, and Personal Directive. Are you prepared?

A complete estate plan includes three documents: a Will, Enduring Power of Attorney, and Personal Directive. Each province and territory has its own laws about these documents.

A person normally makes their estate plan according to the laws of the area where they live. However, there may be special circumstances when a person may need two or more sets of estate planning documents. For example, if a person lives in Alberta, but also owns property in another province or country, they may need to have estate documents prepared in Alberta and also in that other province or country. When in doubt, consult a lawyer!

So, what are the differences among these three documents and what do they each do?

1. Last Will and Testament (“Will”)

A Will is a written document that appoints a person (known as your personal representative or executor) to manage your affairs and property when you pass away. Your personal representative is responsible for making funeral arrangements, taking control of all your property, paying all your bills, filing your final tax return, and then distributing any special gifts and the remainder of your cash and property.

Your Will specifies to whom your property is to be given. You can list specific gifts to certain people for special items, such as collectibles and family heirlooms. And for those of you who have fur babies, you can of course specify who is to look after your pets when you pass away.

You can include funeral wishes in your Will if you like. You can also appoint a guardian for your dependent children.

A Will must be made and signed properly to be valid, so it’s best to get legal help to prevent challenges to your Will.

Who can make a Will?

A person can make a Will in Alberta if:

1. they are at least 18 years of age (there are some limited exceptions to this rule).
2. they have the mental capacity to make a Will. This means the person must fully understand what a Will is and what it does, and the consequences of making their Will. If a person is too sick to make a Will and does not understand what their Will does, then the Will is not valid.
3. they are free from undue influence. This means the person must make their Will voluntarily and free from strong pressure or influence from anyone else. If someone else is threatening or forcing a person to make a Will or to put certain things into a Will, then the Will is not valid.

What is the criteria for a Will?

Wills must be in writing on paper. They cannot be verbal or videotaped. Wills must also meet one of the following criteria:

1. Formal Will – signed by the person making the Will and two eligible witnesses at the same time.
2. Holograph Will – fully hand-written in a person’s own handwriting and signed. Witnesses are not needed for this type of Will.
3. Military Will – made by a Canadian Forces member while on active service with no need for any witnesses.

2. Enduring Power of Attorney (“EPA”)

An EPA is a document in which you appoint another person, known as your “attorney,” to manage your financial affairs and property in the event you lack mental capacity to manage your own affairs. You can specify financial support for your spouse and children, and make other rules about how your attorney must manage your money and property.

Like a Will, an EPA must be made and signed properly to be valid, so it is important to get legal help when making one. In Alberta, an EPA must be in writing, and dated and signed by the person making it along with one witness. There are certain phrases that must be included in order to make your EPA valid.

Just like a Will, to make a valid EPA in Alberta a person must:

• be at least 18 years of age,
• have mental capacity to make an EPA, and
• be free from strong pressure or influence.

3. Personal Directive (“PD”)

A PD (also known as a healthcare directive) is a document in which you appoint another person, known as your “agent,” to make personal decisions for you in the event you lack mental capacity to make your own personal decisions. Personal decisions include medical decisions, where you live, and who can visit you. You can also appoint someone to act as guardian of your children if you are unable to parent them. In Alberta, a PD must be in writing, and dated and signed by the person making it along with one witness.

Just like a Will and an EPA, to make a valid PD in Alberta a person must:

• be at least 18 years of age,
• have mental capacity to make an PD, and
• be free from strong pressure or influence.

When is the best time to make estate planning documents?

Now! Don’t wait until you are sick or it may be too late. The best time to prepare these documents is as soon as you can when you are healthy and not under any stress or pressure. Making these documents now will protect your family and your property, will make sure your voice is heard, and will help reduce stress and costs.

What if I change my mind?

You can cancel or change your Will, EPA, or PD at anytime as long as you have the mental capacity to do so and are free from strong pressure or influence. It is important to update your estate documents over time. This is especially important if you face a change in family circumstance, such as a marriage or divorce, or having children.

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Looking for more information?

• Death and Taxes – When the Certainties Collide
  by Hugh Neilson
  September 8, 2017
• People Always Told Me, Be Careful What You Do: Wills and Dependency Legislation
  by Fred Fenwick
  September 8, 2017
• Round Two: Blended Families and Estate Planning
  by Mandy England
  September 8, 2017

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