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Wednesday, June 20, 2012

Don't stop at having a will - plan for incapacity as well

This week I'm travelling across the western and central part of the province, participating in learning sessions with bank branch staff and meeting with clients to talk about estate planning. I've been surprised to find that although many clients have wills, so far not a single one has an Enduring Power of Attorney and Health Care Directive in place.

This worries me. A will is only one part of estate planning. Certainly it's a major part, but on it's own, a will isn't going to help you meet all of the challenges you and your family may face down the road. Planning for a possible loss of mental capacity is essential. It's no less important than your will, as it fills a completely different need than does your will.

Almost all of us know of someone - a relative, neighbour or friend - who has experienced a loss of mental capacity because of aging, illness or accident. One client I met recently has told me that his aging father's dementia quickly caused personality changes. The father is now suspicious and angry (perhaps frightened at what is happening as well) and lashes out physically and verbally. The client's mother is upset and exhausted. The client is anxious to help but since there is neither a Power of Attorney nor a Health Care Directive in place, he has no legal authority to do anything to help his parents unless he applies to the court.

Having a will in place doesn't help an individual in this unfortunate position, because a will doesn't kick in until a person dies. Imagine seeing your parents going through something so upsetting, and being helpless to act without the cost and delay of asking a judge to grant you permission to take control of your parent's affairs. Or. imagine that you're the one experiencing loss of capacity, and your children have to try to deal with it without you having preparing any documents to help them. This is definitely doing things the hard way.

If you are thinking about having a will prepared, I urge you to have the two documents that deal with mental incapacity - the Power of Attorney to deal with finances and a Health Care Directive to deal with medical decisions  - done at the same time. And if you already have a will, maybe it's time to dust it off, bring it up to date and have your incapacity documents prepared as well.

Don't leave this very important area of planning to chance. None of us knows what will happen in the future, but given the number of individuals who experience a loss of mental capacity, it's a risk worth planning around.


  1. If only I came across a post like this years ago and had my parents plan for this. Now I am in the position of my father with dimentia waiting for long-term care, who only had a will made from a kit and my mother who I had to "form" due to bad decision making and lack of personal care as result from stroke. She has been deemed incompetent as well as my father. I now have to deal with the Public Guardian & Trustee office as they had no POW in place. Sad part is dad is 63 and mom is 58.

  2. Hi Laydilyke. I'm sorry to hear about these issues with your parents. I deeply appreciate you adding this comment, because I believe it will help others. You mention your parents' ages, and this shows how incapacity can happen years before anyone would reasonably have expected it to occur. It just happens and we have to deal with the cards we're dealt. This is why I encourage people to have incapacity documents made up along with their wills - to be prepared for anything. Hang in there :)


  3. Thank you Lynne. And thank you for this blog to share this helpful information to people.

  4. I have a POA in place for my partner but the bank is being difficult saying that I must be a Guardian to access his funds. The POA is perfectly legal but they have said they have their own policies so what is the point really if they can allow what they wish


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