Milton Verskin |
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barrister and solicitor practicing in Toronto, Ontario |
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6.1 What you Need for a Will and Power of Attorney and Why
This is the information I need to prepare your will and powers of attorney.
For your Will
The name of your executor, with two or three alternatives if possible. Your executor will wind up your estate, pay your debts, and distribute the proceeds to your beneficiaries. You should choose someone whom you can trust to handle financial matters. He need not be an expert, since, if necessary, he will employ the services of a professional lawyer or accountant. He should be a resident of Canada.
If any of your beneficiaries is under age, he will act as their trustee, unless you would prefer to appoint someone else as trustee. You should say what age is under age for the purposes of your will - e.g. under 18, under 21, under 25, etc. - you can choose any age you like.
You may make individual bequests if you wish. For example, you may say that $1,000 or your dining room suite is to go to Mr. X or to a charity. It is not essential to make a bequest.
You need to say how the balance of your estate is to be dealt with. For example, you may say that it is all to go to Mr. X, or you may say that it is to in certain proportions to Mr. P, Mr. Q, and Mr. R.
Since a will deals with all possible situations, including the worst possible, you need a number of alternatives. For example, you have to say to whom Mr. P’s share will go if Mr. P is not alive when you die. Your last alternative is the situation in which you die leaving no one who is close to you, in which case you will want to name a charitable organisation as your beneficiary.
There will be a number of personal items which you may want to list. For example, there will be special items like a stamp or coin collection, paintings, etc., and items of sentimental value. You can list these separately in a handwritten codicil, making it clear to whom each item is to go.
You should name the person whom you wish to be guardian of your children, with alternatives. Children’s Aid would investigate this person, who would then be appointed guardian if found to be suitable.
For your Continuing Power of Attorney
You need to appoint someone who will deal with your financial affairs if you become incapacitated. In most cases, the person whom you appoint will be the person whom you have appointed as your executor.
For your Power of Attorney for Personal Care
You need someone who will make personal decisions for you if you become incapacitated. For example, this person will decide where you will live, what clothes you will wear, what you will eat, and what medical procedures you will consent to. You may have special instructions in this regard, for example, you may want to say that you do not want to be put on life support. It would be best, from an administrative point of view, to write these instructions in a letter to the person whom you have appointed, rather than to include them the power of attorney itself.
A power of attorney can be given for one purpose only. For example, it may authorise the attorney to do only one thing, for example to operate the grantor's bank account, or to sell his house.
In a general power of attorney for property, on the other hand, the grantor authorises his attorney to deal with all of his property. What, then, does "property" mean?
“Property” has a well-established legal definition. Black’s Legal Dictionary gives a number of definitions, including the following: “Property embraces everything which is or may be the subject of ownership.”
There are many different kinds of property. Immovable property is land and anything affixed to the land, like a building. Movable property is something which can be moved around, unlike land, which cannot be moved. So a chair and table are movable property. There is also intangible property, that is, something which cannot be touched. Black’s Legal Dictionary gives the following definition of “intangible property”: “Property which cannot be touched because it has no physical existence such as claims, interests, and rights.”
Income is really money. If you put that money in your purse or under your mattress, it is something which you have physically in your possession. But if you put it in the bank, it is a right - it is a right which you have against the bank, since, whenever you deposit money into a bank, you have a right to go to the bank and claim it back. And so, the minute you put your earnings in the bank, it becomes intangible property, something which you own but which you cannot physically touch. Similarly, if your employer has not yet paid the money to you, then you have a right to claim it from him, your income is in the form of a claim and is therefore also intangible property. The same applies to income earned by way of rent, or dividends on shares, or interest on money.
Another term which is often used in contrast to immovable property is “personal property.” Black’s Legal Dictionary defines “personal property” as follows: “The term ‘personal property’ in its broadest legal signification includes everything the subject of ownership not being land or any interest in land, as goods, chattels, money, notes, bonds, stocks and chooses in action generally, including intangible property.” The income which you earn is money or a claim to money [any claim is known in law as a chose in action].
From all this it is clear that "property" covers a very wide range of items - actual physical objects which you can touch, land, furniture, your car, your books and works of art, claims to money or other objects which you have against other people, money, income, claims to income, and so on. When you sign a power of attorney authorising someone to deal with you "property", you are authorising him to deal with everything which you have. |
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6. WILLS, TRUSTS & POWERS OF ATTORNEY |
