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Where there’s a will, there’s a way

My name is Martin Gladstone and I am delighted to contribute to this column.  I have been a lawyer in the greater Beach and Danforth area for many years, as well as a musician in my past life – who still loves to play.  Over time, I hope to share some practical and hopefully valuable insights with you about life and law.

Life happens. You may find yourself buying and selling a home, renting an apartment, signing a lease, starting a business, being an employee or employer, owning a dog, being a neighbour, taking care of your parents, making an estate plan, having a problem at city hall, or dealing with a lawsuit. Most people will deal with a lawyer at least once in their lifetime.

That is why the best advice is to have your estate plan in order. Dying without a will is not only costly; you may lose control over your estate to many competing things – the public trustee, the courts, or perhaps unhappy family members. No two estates are alike, but the common denominator for those who die without a will is that there is more expense, more legal work required, and a lot more stress for those left behind to clean things up.

Your will should not be confused with a power of attorney.  The will kicks in at the time of death. It speaks for you. It tells your executor exactly how things are to be distributed.

Your power of attorney is used when you are alive. You are legally donating your capacity to another person to make decisions for you. He or she can step in and pay your bills. He or she can also make medical decisions for you. The key is to select someone who knows you well, whose judgment you trust, and is close by.

Choosing who will act as your power of attorney is not a decision to be made lightly. You are granting an enormous amount of trust and responsibility to another person and you must give it real thought. You should also think about a substitute if your first choice is not available. The focus is making the appointment while you can, not allowing decisions to be made later by default by others – including the Province.

If you have elderly parents, it is important that their powers of attorney are in place. If you have small children, you need to give some thought to appointing guardians and custodians. The most heartbreaking scenario is where there is a family situation over minors and uncertainty over schools, relocation, the house – it does not end. Parents appointing guardians and setting up proper trusts for the kids can avoid all the disarray that flows from having no will in place.

A lighter aside is the amount of phone calls many lawyers receive from folks leaving on a trip, who are suddenly in a mad panic to have their wills put in order. The underlying belief is they may not return from the Bermuda Triangle. Sometimes we can accommodate, but of course, the process takes time to think through and structure correctly. I am happy to report that every single client of mine over the past 22 years has returned safe and sound from their journeys abroad. Sadly some have met mishaps and accidents in everyday life; others have passed unexpectedly in their sleep with no will in place. There never is a wrong time to be organized.

Another popular tool of estate planning is a living will. Most people chose to have one done at the time they tackle their estate plan. The living will has no legal effect, but it has a certain moral suasion, in that it clearly states your wishes if you become so sick that there is no quality of life and you are virtually vegetative. Your living will requests you are not kept alive by heroic measures or artificial means such as life support.  It is a very personal decision but one that equally requires some thought.

A proper estate plan today consists of your updated will, two power of attorneys – one for medical decisions and one for property decisions – and a living will, highly recommended so your family knows your wishes. There are different considerations for common law couples and same sex couples as well. And if you are an artist or a musician – don’t forget your copyright! It lasts for 50 years after you’re gone!

This is not legal advice. This column is for general information only.

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