Future and estate planning is always an important task for each and every individual, but if one is terminally ill or expects to become incapacitated in future, then it becomes an extremely high priority. Whether or not you find yourself in such a medical situation, along with drafting a last will and testament, there are other advance plans you can make under medical and legal advice to ensure the intentions you have for yourself and your estate are followed.
Please contact DBM’s wills and estates lawyers for more information on the options available for advance planning.
Below, we outline some of the legal documents used in estate planning, advance care planning, and incapacity planning.
- Last Will and Testament
One of the most basic legal documents that everyone should have for future planning is a legally valid last will and testament. A will includes instructions for what will happen following your death, including your preferred funeral arrangements, naming beneficiaries to your estate, setting up trusts, and arranging for final debt and tax payment, among other things.
DBM’s wills and estates lawyers are available at our Langley, Sechelt, and Coquitlam law offices to guide the drafting of your will. It is possible to create your will without legal advice, but particularly if you have a complicated estate (for example, with many properties and assets) or have a family that includes many branches (for example, stepchildren, adopted grandchildren, or ex-spouses), then securing the services of an experienced lawyer is essential.
- Advance Directive
It is important to be aware that unlike some provinces in Canada, British Columbia doesn’t use what are called “living wills,” but rather uses “advance directives. These are similiar legal documents separate from your last will and testament that outline your desires for medical treatment should you no longer be able to give or refuse consent.
An advance directive includes instructions such as whether or not you wish to have a specific procedure, what to do in a worst-case scenario described by your doctor, or whether you consent to the use of life support machines in a specific situation. Note that an advance directive does not appoint a person to make decisions on your behalf, but provides instructions directly to your health care provider.
Anyone over the age of 19 determined to be capable can make an advance directive. Legal representation is not required to create one, but you may wish to seek legal advice. The language of your advance directive must not include anything that is against the law; if it does, it becomes invalid. Your advance directive must also be specific to the medical treatment you think you may be offered in the future, after you are no longer capable of making decisions, and are not generally applicable.
- Representation Agreement
As mentioned in the previous section, setting up an advance directive for your medical wishes does not include appointing a person to make decisions on your behalf should you become incapable of expressing informed consent. To do this, you will need to create a separate legal document called a “representation agreement.”
A representation agreement allows a person, whom you appointed while deemed to be capable, to make decisions about your medical or personal affairs. Additionally, you can use a representation agreement to further allow your representative to make decisions about your financial affairs and obtaining legal counsel. Speak with a lawyer if you are unsure of which type of representation agreement is appropriate for your situation.
You can contact DBM’s lawyers at our Langley, Vancouver, or Coquitlam law offices here
- Enduring Power of Attorney
Along with representation agreements, another incapacity planning option for financial affairs is to appoint someone with enduring power of attorney. This allows your appointed person, or “attorney,” to make decisions specifically about your financial and legal affairs if you become physically or mentally incapacitated.
Contrary to popular belief, your next of kin is not automatically able to make decisions for you in such a situation, and so an enduring power of attorney is essential to any estate planning. Without an enduring power of attorney, the state will likely be appointed as your temporary substitute decision maker.