Imagine that you suffer a serious head injury in a car accident, or you have a stroke. You become mentally incapacitated, either permanently or temporarily.
Imagine your loved ones having a serious difference of opinion as to what sort of medical care you should receive. Perhaps your parents and your spouse fundamentally disagree about your medical care.
What if there is a cash crisis and you need to sell your home (or even renew an existing mortgage)? Did you know that no one – not even a spouse who is also on title with you – will be able to sell that property for you or renew your mortgage if you are unable to make decisions and sign documents for yourself.
Because you are still alive (although incapacitated) a Will (and the Executor appointed by your Will) is not going to assist you, because a Will only applies after death.
Instead, your loved ones will need to apply to a Court to be appointed as your Trustee to manage your money and property, and your Guardian, to protect your person. This is a lengthy and expensive process. All this in a time of crisis.
Imagine if you could avoid that horror story with two simple documents. I am happy to confirm with you that you can do this. In our opinion you should do this right away.
Here are those two documents as used in Alberta (variations of these exist in other Canadian provinces as well):
- Power of Attorney. This document allows you to appoint another person to take over the management of your assets, debts and financial affairs generally in the event that you become incapable of doing so yourself. This document can come into effect immediately (for example, if you need to leave the country on business for an extended period of time) or only if and when you become mentally incapacitated.
- Personal Directive. This document (sometimes called a “Living Will”) allows you to give another person the power to make medical and other personal care decisions for you in the event that you become mentally incapable of doing so yourself. We normally include guidelines that express your personal wishes as to how to make decisions, and in particular to give direction to allow you to die with dignity if you are both terminally ill or injured and you have lost all ability to interact meaningfully with the world around you, with no hope of recovery.
By planning in advance for the possibility of mental incapacity, you are achieving at least the following two results:
- Your wishes will be respected. Planning allows you to decide now, while you are still healthy, who you would like to appoint as a substitute decision maker for you should you become mentally incapacitated, as well as what powers (and limitations) you wish them to have. These documents, when properly prepared, are legally binding and enforceable.
- You will make a smart investment. It is far less expensive and time consuming to plan ahead than to deal with matters when a crisis actually occurs and you and your loved ones are generally least prepared for it.
The best time to make these documents is while you are healthy and don’t need them. If mental incapacity has already emerged, it can be too late.
At Patriot Law Group, we feel so strongly about the need for these documents that we offer prices that bundle both the Power of Attorney and the Personal Directive together with your new Will so that you can have the most comprehensive legal protections in place for disability and death.