As one gets older, they may start to think about the one thing we all have in common, that our time here will eventually come to an end. Unfortunately, we don’t know when this time will come, and what the circumstances will be. This is why we suggest that even if you’re not getting up there in years, you prepare your Will, personal directives, and powers of attorney now. But what are all these things? Aren’t we covered with one document? Can we do it ourselves? What might I be missing? Well, you’re in luck, we’re here to answer all these questions for you.
What’s the difference between a Will, personal directive and power of attorney?
A Will is a document that lets others know how you want your property to be distributed when you die. A properly signed and witnessed Will becomes effective on the date of your death.
A personal directive sets out how you wish to be cared for when you are living, but incapable of speaking for yourself. It covers such personal care decisions as health care, residence and support services. It is not related to financial matters or assets.
There are many types of power of attorney. The most common type is a general enduring powers of attorney. This document allows someone to fully step into your shoes financially. You still have full rights to act upon your own behalf, it just allows someone else to step in when you might not be able to. For example, if you had a stroke and someone needed to do your banking for you, your power of attorney could make transactions on your behalf.
Another power of attorney is an enduring specific power of attorney. This limits the tasks a person can do with the power of attorney. We often provide specific powers of attorney when a person owns a corporation and they need to appoint their business partner to handle their financial affairs in the corporation only. We then create another a specific power of attorney in favour of their life partner, who will handle their personal finances if needed.
In summary, a Will is for the distribution of your assets after death, a personal directive is for your personal care, and an enduring power of attorney is related to care of your finances while living. As you can see, together they provide complete care of you in the event you cannot do it to yourself and then after you are no longer with us. While they are three separate documents, we offer a reduced rate when clients buy the package (eg., a single estate package which includes the three documents is $645 plus HST). All these fees are listed on our website.
Without a Will in Nova Scotia, what happens to my assets?
Your estate (assets) will be divided according to the rules set out in the Intestate Succession Act. Roughly the first in line to inherit would be the spouse and children, and then each of the following if none preceding were living to accept: the parents, siblings, nieces and nephews, and then further relations. This may lead to things being distributed differently than you wished. Perhaps your siblings are more in need of a home than your parents who already have one. Perhaps you are in a common law relationship and expected they would receive your home, they are not actually included in this list of succession and have no rights if they are not in a Registered Domestic Partnership with you. In addition to these potential problems, there will be additional expenses and a delay in settling the estate which can cause further pain and distress for your loved ones.
Without a personal directive in Nova Scotia, what happens if I can’t speak for myself?
Similar to the Intestate Succession Act having a list of succession, there is a list in the Personal Directives Act which states who will be asked to be your “statutory decision-maker”. It starts with a spouse, which includes common law or registered domestic partners, then moves on to children, parents, someone who stands in the place of a parent, siblings, grandparents, grandchildren, aunts and uncles, nieces and nephews, other relatives and as a last resort, the Public Trustee’s office. Similarly to your distribution of assets, without the proper document, it will take additional time to appoint this decision-maker, and in the meantime a doctor who does not know you, your wishes, or even your religious beliefs, will have to make urgent decisions for you. If you had a personal directive on file with your doctor, both your decisions and the person you chose to express them for you could be reached sooner should you be in an accident.
What happens if I suffer from a stroke or another medical condition without an enduring power of attorney in Nova Scotia?
If you do not have a power of attorney, whomever wishes to care for you/ your finances will have to apply to the Supreme Court of Nova Scotia to become your guardian. There will have to be a hearing to see if you are in fact incapable of making your own decisions, and if you need a guardian for some or all aspects of your life and finances. This of course takes time and has associated costs for the court. The last guardianship application our firm did— and everybody agreed the husband should be the guardian of the wife who suffered brain injury in a car accident— cost approximately $5000 in legal fees. Read more about the Canadian Bankers Association requirements in regards to power of attorney’s.
Estate planning in Nova Scotia
While not required, we believe we have made a good case for why we do advise on the creation of all three of these documents. There are so many factors that come into play when we don’t have them. Delays, decisions that don’t align with our wishes, extra expenses, and unnecessary distress for our loved ones. Feel free to drop in on our Wills and Estates page for further information on things such as cost, or you can book your free 15 minute consultation.
Probate and taxes, one last thing to consider
Our Advanced Estate Planning Package— which we typically prepare for estates that have a higher value, closer to the million dollar figure— analyzes the tax implications and reviews all of your assets to determine how best to avoid or minimize taxes and how to avoid probate if possible. This package, which includes the three foundational documents: the Will, the Power of Attorney and the Living Will, is $3500 plus HST.
The above is provided for informational purposes only and does not constitute legal advice — contact a lawyer to discuss your personal circumstances and learn your options.
Compiled by Lisa Teryl
Lisa Teryl is one of our estate planning lawyers. To learn more about Lisa, please visit our about us page. To learn more about our services in Wills and Estate Planning, please visit our Wills and Estates page.