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Sunday, November 21, 2010

Make sure your family knows who has been named to act

Earlier this week I met with a client to discuss estate planning, and as part of that process he let me know who he wanted to appoint as the executor under his Will, his attorney under his Power of Attorney and his agent under his Personal (health care) Directive. As the fellow doesn't have a wife or children, he chose a close friend to act as his health care representative.

The client said, "I suppose I should ask her whether she's ok with this". Yes! He should check, and so should everyone who makes legal documents naming someone who will be expected to take action when the situation calls for it.

It's dangerous to name someone as executor, or as a representative under any legal document, without their knowledge and consent. Don't just assume that your decision will be fine by them. If they don't know they've been named to the job, they aren't going to do anything to help you. They won't even know they are supposed to help. This could lead to you ending up with someone else in their place if your documents aren't found and your representative identified and located. At the very least, you could end up with delays and arguments while it's sorted out.

When you name someone as your executor, you should let them know. If they aren't happy with that, they should tell you that, so you can choose someone else. You should also tell your executor the following:
- whether there is a co-executor to work with them
- where you keep the original Will
- your wishes for burial/cremation, and any pre-arrangements you've made
- if you have minor children, tell your executor who's been named as guardian

Come right out and ask your chosen person how comfortable he or she is with looking after your estate. You might get an answer that surprises you. Sometimes a person will say that they don't want to do it alone and will only agree to the job if there is a co-executor. Sometimes people feel exactly the opposite way and fear that having a co-executor will lead to disputes. You won't know if you don't ask.

The same applies for anyone that you've named under a Power of Attorney or Health Care Directive. You must let them know they've been named. Either give them a copy of the document that names them, or tell them where the documents may be found. As these documents involve looking after you (either financially or medically) while you are still alive but incapable of making your own decisions, talk over any special wishes you have. Some of the special wishes I've seen are a wish to live in their own home as long as possible, a wish that if the person must live in long-term care it has to be a place where he might worship in his chosen religion, and a wish that college tuition for an adult child continue to be paid.

Your special wishes will be included in your document if you discuss them with your lawyer, but even if they are included, it's a good idea to talk them over with your representative under the documents.

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