Your Legal Representative
I am in the middle of my first three part Estate Planning workshop. The participants have completed two of the three day event and feedback has been very good. There were lots of questions and discussion around the legal representative, so I thought I should share my thoughts about who should be your legal representative.
You will likely have three situations where your legal representative will step in on your behalf. First, for your health and end of life care; second, for your finances when you are incapacitated; and finally, when you pass away.
The last one will be your executor or administrator when you die. We have a 100% chance of dying so you better put in writing who will be your executor: you need to have a valid Will.
What happens if you don’t have a Will? You are considered “intestate”: you died without a Will. Then someone has to step up and offer to be your legal representative. And often others have to agree.
I have assisted many families in the past few years. I have helped families get the court approval to administer the Estate. Yes, you can apply yourself without a lawyer. I can help you do that if the estate is straight forward. If it could be complicated, I will recommend you talk to a lawyer.
The first and most obvious legal representative could be your spouse. If you die without a Will, your spouse can be appointed your legal representative. The courts approve the request and it’s called “Letters of Administration”. It’s a court document (one page) that legally appoints someone to be the administrator of your Estate.
The second most obvious person to apply is one or more of your children. If you have more than one child, the rest will have to agree. As administrator, you need to be nominated by the rest of your siblings. Or two of you can offer to be the administrators and the rest of the siblings will nominate you.
And the appointed administrator must live in Manitoba. I recently was appointed the administrator for an estate because the children did not live in Manitoba. Actually the sons were relieved they didn’t have to do it. It can be a lot of work. Mostly paper work and dealing with a lot of organizations. And a lot easier if you live near where the deceased lived (which they did not).
If you do not have a written Power of Attorney that appoints someone to make financial decisions for you if you are unable (incapacitated), then someone needs to be appointed by the courts as the legal representative. This is called “Committee” (pronounced “comma tea”). This is more complicated than being appointed administrator of your estate and I recommend the family seek a lawyer to help with the application.
Who can apply to be the Committee? Anyone who lives in Manitoba, usually a close relative or friend. It can also be a trust company if the estate is large. As a last resort, the Public Guardian and Trustee may be appointed.
So, if you do not have your legal documents in place: Will, Power of Attorney, Health Care Directive or Compassionate Care Contract; your legal representative can be appointed by the courts. However, it may cost more and will definitely take more time, and may cause some family problems.
I recommend if you do only one thing after reading this article, get your Power of Attorney document in place. It’s the most difficult and complicated if you don’t. If you die without a Will, it’s not ideal, but your estate can be administered relatively easily if you were not in a second relationship.
Who should be your legal representative?
Decide now while you have a choice and while you have the mental capacity to decide. You can change your mind in the future and choose someone else. Of course it costs money every time you have to write a new Power of Attorney document or a new Will.
I recommend it be someone who has the financial capacity and the time to look after your affairs (while alive or after you have died). The person should also be someone who will be proactive and not a procrastinator. The individual should also be someone who will communicate regularly and easily with your beneficiaries.
When I was the legal power of attorney and then executor for my parents, the most important thing I did was send copies of the bank statements every month to my siblings so everyone stayed informed and I was held accountable. It made me feel better knowing that my siblings knew everything I was doing.
What is the recipient of accounts?
Should you name more than one legal representative? You can, but normally not recommended or not needed. While looking after your finances while you cannot, the legal representative is accountable to the “recipient of accounts”. This is another individual you have appointed to receive the financial information on a regular basis so the attorney is being held accountable.
If you insist on naming two to act jointly, then make sure they get along and they live fairly close together. Most of the time one person ends up doing all of the work, and the other person just co-signs everything; makes the administrating more difficult than it needed to be.
And after you die, your executor is held accountable to your beneficiaries and must report all income and expenses to the beneficiaries. I recommend to executors that they don’t wait till the end; I suggest that they report monthly so there is full information flowing to the beneficiaries regularly.
So, how can I help you? I can help your appointed Power of Attorney and your appointed Executor(s) help them deal with your affairs.
I will often get calls from the family advising of a client’s death and we meet shortly after so I can guide them what they need or don’t need: do you need to have the Will probated (approved by the courts); do you need to get a lawyer; and how best to handle all the bank accounts and income tax returns. Many older clients have informed me they have written instructions for their children: “when we die, call Anni!”
Sometimes I am appointed the executor if there is no one else suitable, or family live too far away. Or I can be appointed as the co-executor to assist your family member if they may otherwise be overwhelmed. Or as I explained earlier, if there is no Will and no one suitable lives in Manitoba, I can be nominated by the family and appointed the Administrator.
I would prefer you have a valid Will and Power of Attorney in place. I have seen lawyers advertising a Power of Attorney for $150 for seniors. So no excuses to not have at least this document in place.
If you need some nudging, sign up for the next Estate Planning Workshop and then you will be good to go.
A reminder for my faithful readers: Service Canada (CPP, OAS) is in Ste Anne every month at the Manitoba Service Centre, 30 Dawson Road, next to my office. The next date is Thursday November 17. Sign up for online access to your Canada Pension Plan account and Canada Revenue Agency account.
Anni Markmann is a Personal Income Tax Professional and Certified Financial Planner; living, working, and volunteering in our community. Contact her at 204.422.6631 or 36 Dawson Road in Ste Anne (near Co-op) or Info@SteAnneTaxService.ca.