Wills and Estate Law in Toronto

What is a will and how often should I write one?

Commonly referred to as The Last Will and Testament, it is a document with powers that are triggered by your death. In it, you express your wishes about what is to happen with your property and any other assets. The document can be held for safekeeping in your lawyer’s office, a safety deposit box at your bank or any other secure spot where you feel it can be easily found. A will should be revisited every five years, or whenever there are major changes such as a divorce, marriage, new children, parting of ways, etc., that would prompt an adjustment to be made to your will. In this case, a Codicil (change document) may be completed, rather than writing a new will from scratch, in certain circumstances.

Who should write a will?

Once you’ve reached the age of majority and own significant assets you can draw up a will. You can write a will earlier if you are on active duty with the armed forces at a younger age or if you are married before the age of majority. The same applies for both pre-death documents. Without a will, the Succession Act kicks in. This law dictates to whom your assets and property will go. If you have no heirs, your estate (all of your assets) may go to the government.

Powers of Attorney

A Power of Attorney is a legal document in which you give someone you trust (called your “attorney”) the right to make decisions for you if something happens and you are no longer able to look after matters on your own.

There are two types of Power of Attorney:

  • Power of Attorney for Personal Care – the person you name can make decisions about your health care, housing and other aspects of your personal life (such as meals and clothing) if you become mentally incapable of making these decisions.
  • Power of Attorney for Property – the person you name can make decisions about your financial affairs (including paying your bills, collecting money owed to you, maintaining or selling your house, or managing your investments).

You don’t have to create a power of attorney. But if something happens to you and you don’t have one, other arrangements will have to be made. A family member may have the right to make certain personal care decisions, and can apply to become the guardian of your property. Alternatively, someone else — like a close friend — could apply to the court to be authorized to act for you.

To sign a power of attorney you must be considered mentally capable.

To be considered mentally capable of giving a power of attorney for personal care, it must be clear that you understand the need to choose someone with genuine concern for your welfare, and that there may be a need for that person to make personal care decisions for you.

To be considered mentally capable of giving a power of attorney for property, it must be clear that:

  • you know about your assets (what you own, what they’re worth)
  • you are aware of your obligations to your dependants, and
  • you understand the authority and power you are giving to the person holding Power of Attorney.

Choosing your attorneys

Your good judgment is key to choosing a trustworthy person for this important responsibility.

The person you choose as your power of attorney for personal care must be at least 16 years old. For a power of attorney for property, the person must be at least 18 years old.

Anyone given power of attorney must be considered mentally capable when they are appointed.

Choosing your attorney for personal care

The person you decide to appoint as your attorney for personal care should be someone you trust to make decisions about your housing, food, health, safety, hygiene and clothing. This could be a family member or a close friend. Talk to the person and make sure that he or she is willing to take on this responsibility if needed.

Certain people are not allowed to be your attorney. Do not name any of the following people if they are paid (by you or someone else) to provide services to you, unless that person is also a family member:

  • your landlord
  • any person who provides care for you in the place where you live
  • your social worker, counsellor, teacher
  • your doctor, nurse, therapist, or other health care provider
  • your homemaker or attendant

Important legal note: unless your power of attorney says otherwise:

  • An attorney for personal care is only allowed to make medical or long-term care decisions if a medical professional or evaluator finds you mentally incapable of making the specific decision.
  • For all other types of personal care decisions, the attorney can step in if they believe you are incapable — no assessment is required.

Choosing your attorney for property

Important: Be very careful signing a power of attorney for property, because unless you specify otherwise, the person you name can start making decisions immediately. You may want to include a statement in your Power of Attorney that says the attorney can only make decisions if you become mentally incapable.

If you choose to appoint this kind of attorney, make sure the person you choose understands your wishes and agrees to this important responsibility, which includes keeping detailed records of all transactions involving your money and assets.

One option is to use a trust company to act as your attorney. The trust company charges a fee but will be professional and impartial.

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