Explanation of Legal Terms

 

A Will

The purpose of a Will is to provide for the distribution of your estate. A Will should include an appointment of Guardian for under age children.  An Estate Trustee is appointed to manage the estate. Trusts may be established in a Will, to leave an inheritance for the benefit of younger children, for example, or to split income.

The consequences of dying without a Will:

  • Your family may not have ready access to your money or assets.
  • No one is appointed to manage your estate, making its administration more time-consuming.
  • Your wishes in the distribution of your estate are not recognized under the law.
  • Ontario law dictates how your estate will be distributed.
  • If you are the surviving parent, your children may not be cared for by the person you had intended.
  • The costs to administer your estate will likely be higher than if you had a Will.
  • Your common law spouse is not entitled under Ontario law to a share in your estate.
  • Your assets can be sold and the cash is distributed under Ontario law.

A Power of Attorney

A Power of Attorney appoints one or more persons (attorneys) to make decisions for you. (An attorney is not a lawyer.) The Power's scope can be broad or specific. The appointment can dictate when the attorney acts according to your directions. Care is needed when selecting the attorney.

You cannot sign a Power of Attorney if you are mentally incapacitated.  Generally, you are mentaly incapacitated when you are not able to understand information or appreciate the consequences. Should a sudden illness or accident render you incapable, you cannot sign a Power of Attorney to manage your affairs. 

Power of Attorney for Property (Continuing or General)

This document appoints an attorney to manage your property.  It is especially important for spouses owning property jointly. Should one spouse become incapacitated, the other cannot make changes to the ownership of the property if there is no Power of Attorney. 

A General Power is effective once signed and will remain so until you are mentally capable. Once you are incapacitated, the General Power is no longer effective. The preferred document is a Continuing Power of Attorney as it remains in effect when you become mentally incapable of making decisions. It is critical to keep both secure until needed. 

This description is simplifed and there are many exceptions; to see the complete details, visit Community Legal Aid of Ontario.

Power of Attorney for Personal Care

This document appoints an attorney who makes medical decisions for you in the event you are no longer capable of making decisions for yourself. It allows you to set out instructions regarding your care and medical treatment when you are incapacitated. Without it, a substitute decision-maker must be appointed. In certain instances, doctors will need a substitute decision maker to consent to treatment. For more information see Community Legal Aid Ontario.