Estate planning is easy when you鈥檙e on death鈥檚 doorstep.
Imminent predictability of death eliminates the bottomless pit of contingencies that can be the most difficult part of an estate plan.
By contingencies, I mean all the various twists and turns that life might throw at you between the time you make your estate plan and the time you die.
It鈥檚 an unending list for a young person with a full life ahead of them. Here are a few off the top of my head:
- Beginning of a spousal relationship (married or common law),
- Having children,
- Ending a spousal relationship,
- Another spousal relationship,
- Stepchildren,
- More children,
- Acquiring property, with capital gains implications,
- Grandchildren,
- A child marries someone you detest,
- A child spirals into drug addiction,
- A child鈥檚 financial situation tanks with significant debt,
- A child dies,
- An executor dies or your preference of executor changes,
- Your financial situation significantly changes.
That list is far from comprehensive!
Contingencies narrow but do remain as we age.
I caution clients in their 70s against avoiding probate by making asset transfers to their children because of what could occur during their last 20-30 years of life. I recently had one client in her 70s laughing when I pointed out that she could end up falling for a hot little 60-some year old.
Not so funny when it happens, and you want to access the equity in your home to maximize enjoyment of that new relationship, but you鈥檝e transferred title to a disapproving child.
Lawyers do our best to advise about structuring assets and drafting wills to accommodate as many contingencies as is reasonably possible.
For example, standard clauses provide for an expanding family, an alternate executor, or for a predeceased child鈥檚 share to go to their children (your grandchildren).
But many contingencies cannot be planned for in advance, which is why it鈥檚 important to review your estate plan from time to time. This is a topic I鈥檝e written about before. If you cannot locate that column, please e-mail me and I鈥檒l point you in the right direction.
Future contingencies start melting away as the timing of death becomes more and more predictable.
The diagnosis of a serious medical condition, with a prognosis of death within weeks or months, gives you an opportunity to arrange your affairs in a way that will save your loved ones a bunch of hassle and expense.
No need to redo your will. You can give your assets away while you鈥檙e alive.
Though maybe wait out the prognosis a bit while you exhaust care options. Just this past week I heard a fellow tell the story of a complete recovery from exactly that kind of prognosis!
A more certain situation is after qualifying for medical assistance in dying (MAID).
The timing of your death is no longer based on an uncertain medical prognosis. It鈥檚 been planned to alleviate suffering.
It is of key importance to take intended steps with your assets or estate while you continue to have the cognitive capacity to do so.
Alternatively, you can appoint someone power of attorney, giving them both the power as well as the clear instructions on what to do on your behalf if you lose that capacity as your medical condition continues to deteriorate.
Then it鈥檚 up to that person to fulfill your wishes before death occurs, because a power of attorney has zero authority after you鈥檝e passed away.
We never know when something might suddenly occur that takes away our cognitive capacity, whether that be a medical or traumatic event. You can choose at any stage of life to appoint a power of attorney with a level of authority that would allow them to distribute your assets according to your will in circumstances where your death is imminent, and you no longer have the cognitive capacity to do it yourself.
Note that standard form powers of attorney don鈥檛 include those powers.
Next week I plan on tackling the subject of MAID. I鈥檝e recently learned that in certain circumstances MAID can proceed even if you鈥檝e lost the cognitive capacity to give final consent. This gives us the luxury of prolonging our lives without the fear that our wish to die when we鈥檝e chosen to will not be stolen because our cognitive capacity has slipped away.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
