Wills, personal directives and powers of attorney what are they and do I need one?
A Will is needed to dispose of your property as you wish, to carry out your wishes economically and to ensure your children are provided for according to your plans and wishes for them. Without one, unfortunate consequences can result, and the estate is divided according to the inflexible rules of applicable statutes, usually with the involvement of the Probate Court and, sometimes, the Public Trustee.
In planning your Will, you should consider who to name as the Executor; who manages your assets and debts of the estate and carries out the terms of your Will; who to name as the guardian of the children; what gifts you wish to make; what conditions to set for any trust funds for children or a spouse. These are a few items to consider. There are more and these are normally discussed in detail with the lawyer who helps you draft your Will.
A Personal Directive allows you to set out how personal care decisions are to be made for you when you are unable to make your own decisions. It can include issues related to health care, nutrition, hydration, shelter, residence, comfort, recreation, social activities, support services, clothing and hygiene. It also allows you to appoint a person (known as your “delegate”) to make personal care decisions, including health care decisions, if you are incapable of doing so. Your delegate should be someone who knows you well, who you trust and who would respect your wishes.
The Personal Directive is only in effect when you are alive and mentally incapable of making decisions on your own behalf.
Powers of attorney
A Power of Attorney is a written document through which you designate someone you trust to manage your financial affairs if you are unable to do so. It can be general or specific, and can be tailored to suit your anticipated needs. You must be mentally competent to sign one, and it is normally meant to be used only if you are incapable of acting for yourself.
One reason to have a Power of Attorney is to maintain control over your affairs, through your named “attorney”, at the time in your life when you cannot. Your attorney need not be a lawyer and is most often a relative or trusted friend. Without one, your affairs could be administered by a Public Trustee or Court appointed guardian. The cost of these procedures would greatly exceed the cost of preparation of any of the documents referred to on this page.
Very often, when a Will is being discussed, clients also prepare Personal Directives and Powers of Attorney, thereby prudently doing as much as possible to plan their asset management and personal care for the future.