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Thursday, November 4, 2010

Can an executor take charge while the testator is still alive?

Estate planners will tell you that you need to make a Will, but that you also need to have an Enduring Power of Attorney and Health Care Directive as well. We can't see the future, so we have to plan for all reasonable eventualities. Even though that message has been out there for years, there are still plenty of people who only make a Will and don't address incapacity. There are plenty of reasons for this, from trying to keep expenses low to believing that fancy documents are only for rich people.

Another reason that some people don't take their planning a step further and have incapacity documents prepared is that they don't truly understand the difference between what an executor does for them and what an Attorney under Power of Attorney does for them. When I talk to people about powers of attorney, they sometimes say that they don't need them because they've covered it off in their Wills. For example, seniors sometimes think that because they've named their son or daughter in the Will, the son or daughter will be able to access bank accounts, records, tax information etc on behalf of the parents while the parents are still living. Unfortunately, they are completely wrong.

A Will does nothing at all for you until you have passed away. Appointing someone as your executor gives them absolutely no power at all to act on your behalf while you are alive.

If you want someone to have the ability and the right to act for you, deal with your accounts or investments or home, or make health care decisions for you, you  need more than a Will. To enable someone to help you while you are alive, you need an Enduring (Continuing, Durable) Power of Attorney for financial decisions and a Health Care Directive for health, medical and personal decisions. in some parts of Canada, an option for medical and personal decisions is a Representation Agreement or other supported decision-making document.

If you don't make these documents and you lose your capacity to make your own decisions, your Will still doesn't help. In that case, someone in your family may have to apply to the courts to become a court-appointed trustee or guardian. At that point you will have completely lost control of the decision about who can act on your behalf.

It's scary to think about the number of people who really think they've got something covered when in fact they haven't got a single thing in place to help them.

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