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Here’s a simple checklist of things for seniors to think about when getting their estates in order:
Never transfer property completely to a child if you desire to retain some beneficial interest in the property. Even the best of children can turn against you.
When giving instructions for a will and there is more than one child, never give instructions to a lawyer in the presence of any of the children. The purpose is to avoid allegations from a child about undue influence upon the parent from another child.
If a will favours one child over another, it is helpful to give reasons for the unequal distribution. The reasons may be inserted into the will but definitely, should be noted in the lawyer’s file.
Power of Attorney (Property)
Unless there are special circumstances, the effective date for a power of attorney for property should be when the grantor is incapable of managing property.
A mechanism should be put into a power of attorney for property setting out how a determination of incapacity to manage property is to be made.
Power of Attorney (Personal care)
Such a power of attorney sets out who can make decisions regarding a persons health when they are unable to give instructions.
Also can be useful if the grantor has certain opinions on the nature of the treatment he or she wishes to have.
Independent Legal Advice
Utmost care must be taken that a senior person receives independent legal advice.
This is most important when there is a transaction involving the senior and anyone else, including members of his or her family.
By definition, seniors are vulnerable people and therefore must receive independent legal advice.
Capacity to Give Instructions
If a lawyer has any doubt about the ability of a person to give instructions, the lawyer must make further inquiries about the persons health and ability to give instructions.
If after further inquiry, the lawyer is not satisfied that the person is capable of giving instructions, the lawyer cannot act further.
It should be noted that the test for capacity to make a power of attorney for property and a power of attorney for personal care are not the same (see Substitute Decisions Act). The test for capacity to make a will may be different again.