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Alona 

 Let your voice be heard

As children we are taught to plan ahead and not to procrastinate. This is a very good yet simple lesson that we often don’t follow. I, for one, am guilty of this – I am the consummate procrastinator. However, putting off writing a term paper, fixing the leaky faucet, or putting up the Christmas lights are all things that have no ultimate deadline. If you don’t get around to it you will simply take a lower grade, pay a higher water bill or have to put up the lights in freezing weather. However, what will happen if you procrastinate on making your will?

It is often said that there are two certainties in life – death and taxes. For many people, talking about death and dying are taboo. It’s as if talking about it might make it real – so instead of planning ahead for the inevitable, they put it off in the hopes of never having to deal with the issue. Unfortunately, death is very real and life is too short and precious to take for granted.

We may live long and healthy lives, or we could die in an accident tomorrow. Or we could suffer an illness or accident that could place us in a situation similar to Terri Schiavo, the American woman whose death a few years ago was broadcast around the world and whose family was torn apart over whether or not she should be allowed to die. No one knows what our future holds but we have the ability now to ensure that if such a situation does arise, our voice will be heard so that our families and loved ones don’t have to suffer with anxiety over making the “right” decisions and having to guess how we would have wanted them to act.

The debate over a person’s right to live or die raises very difficult moral, religious and legal issues that no family wants to face but might ultimately have to face because we all know that there is no greater certainty in life than death. Consequently, one of the most important decisions we may ever have to make is how we want to die.

To ensure that your voice is heard on these very important matters, there are three legal documents that should form an integral part of everyone’s life and estate planning. As a wills and estates practitioner, I advise my clients to have a Will, a General Power of Attorney (“GPA”) and a Health Care Directive (“HCD” or more commonly known as a Living Will). These three legal documents, combined, will ensure that your voice will be heard and your wishes followed.

Why do I need three separate documents?

The WillThis legal document dictates the distribution of your assets after death. It’s your last opportunity to let everyone know your wishes. Without a will, provincial laws dictate how your estate will be distributed.

The GPA ­­– This legal document grants a named individual (called the “attorney”) the right to do everything you can do legally (with some exceptions). It allows the attorney to deal with your financial estate during their lifetime. For example, if you are out of the country or are sitting at home with two broken legs, the attorney can use the GPA to finalize your house deal, or accept or deny a court settlement on your behalf. You can revoke the GPA at any time and it’s only effective when you give the GPA to the attorney. Many individuals execute GPAs but never use them. Why? For protection and peace of mind - knowing that the documents are there in case they are needed.

The HCD or Living Will With GPAs, one major exception is that your attorney cannot make health care decisions on your behalf. Only your Health Care Proxy can do this. By naming a Proxy in a Health Care Directive you are granting them the power to make your health care decisions if you are unable to. It is therefore very important that you discuss your wishes with your proxy. For greater certainty, you can set out general guidelines or explicit instructions in your HCD. Our opinions and beliefs about treatment, quality of life and death are very personal. However, our right to have our wishes followed is not always absolute. In order to enforce our rights, we need to ensure that they are in writing and legally binding.

Combined, the GPA and the HCD provide an individual with protection while they are still alive. Without these documents, if a person becomes mentally incompetent or physically incapable of giving directions, no one will possess the legal authority to deal with their estate. In some instances, the financial institutions or the hospital will allow the spouse to make certain decisions on the person’s behalf. However, this is not always the case and there is no obligation on the part of the financial institution or hospital to deal with the spouse or family. If this happens, the spouse/family will have no choice but make an application to the court to be named the Committee of the individual. Having these two documents will not only spare your family from the added expense of going to court, it will also give them the peace of mind knowing your exact wishes.

This trio of legal documents protects our individual rights and provides us the opportunity to make our voice be heard in situations where we may no longer be able to speak. Regardless of your opinions on dying, the choices you make today will greatly impact your loved ones tomorrow. The first step towards taking control and expressing your rights is to openly discuss your wishes with your family. Then you need to see a legal professional to give effect to your wishes.

Once again, the Winnipeg Foundation, in partnership with the Manitoba Bar Association and Office of the Public Trustee, will hold Will Week – Estate Planning For Your Future. Manitoba lawyers will present free information seminars as a public service throughout the province from April 20th to April 24th, 2009. For further information or to register, please call 948-3394. I will be the presenter at the PCCM presentation on Wednesday, April 22nd, 2009.

Remember, only you have the power to protect yourself, your family and your estate. Don’t procrastinate. Make your voice be heard.

Disclaimer:

The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the content of this article, please seek the services of a legal professional.

Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate, business and commercial transactions, and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or amercado@monkgoodwin.com.

 

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