Advisable to get advice before changing your will

Changing your will

A question from a reader: “If you move, is the will invalid if it has your old address on it?”

And another question from another reader: “Can we strike off the first-choice executor and initial it, and would the will still be legal? Can you write in a new executor or must a new will be made?”

And a lament from a third reader: “Every time I want to make a very minor change in my will, my lawyer charges me $275.”

You’ve spent a a lot of money having an “optimum” will prepared, with the full benefit of legal and estate tax advice. Can you now “do it yourself” to make changes? The short answer is yes.

I’ll get to that but first a caution that your will might no longer be optimum.

Your lawyer didn’t just plug your name and the names of executors and beneficiaries into a form document. That’s what I suspect you would get when using a will kit. Your lawyer learned about your life, asset circumstances and wishes and then drafted a will to best achieve your wishes.

Circumstances change over time. If things have changed to the point you want to switch an executor, perhaps there have also been changes to your life and asset circumstances that require additional changes to your will for it to be optimum.

Tax laws also change. An optimum estate plan today might no longer be optimum next year simply because of changes to our tax laws. The bottom line is it is advisable for you to consult with your lawyer and estate tax accountant periodically for review of your estate plan to ensure your will and other estate plan documentation continue to be optimum.

Now, on to the “do it yourself” advice.

Answering the first question, a change of address has no impact on a will. So, why do wills include addresses?

There is more than one Paul Hergott but only one who resides at a particular address. At some point I’ll move. There’s still only one Paul Hergott who, at the time the will was made, resided at that address. So no, moving does not invalidate your will because it has your old address on it.

In most circumstances, addresses are altogether unnecessary because other information will eliminate any uncertainty. But to be safe, lawyers typically include addresses to avoid that one in a thousand chance the identity of someone named in a will is ambiguous.

What about changing the name of your executor by crossing out the old one and writing in the new?

Yes. But you can’t just put your initial by the change. Quoting from section 54(2) of the Wills, Estates and Succession Act, the will-maker must sign “in the margin or in some other part of the will opposite to or near to the alteration”.

The will-maker’s signature must be witnessed in the same way that a will must be witnessed. There must be two adult witnesses present with you when you make your signature, and who then each sign in your presence. Neither witness should be a beneficiary.

There’s another, cleaner way. If you have an electronic version of your will that can be changed on your computer, or can create one with optical character recognition. You can make the change on your computer, print the amended will, and then sign it with the new date as your new will. Of course, you always need to follow the rules about witnesses that I referred to. Then destroy your old will.

Consider, when paying a lawyer to prepare your will, requesting an electronic, modifiable version of your will to make this easier.

I will end with another caution. You may benefit from legal advice about the change you wish to make.

The choice of executor is something that should be informed by legal advice. In future column, I will give some advice about that choice. Without legal advice, you might choose an unadvisable executor that results in a mess after you pass away.

Other changes might also benefit from legal advice. Going into a lawyer-prepared will and mucking here and there without fully understanding the legal reasons behind the provisions can be a recipe for disaster.

Do you have a question that you would like me to write about? Please e-mail me. I’ve been writing weekly about end-of-life matters since the end of January, 2024. If you have difficulty accessing past columns, please let me know.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Taking time off work to provide compassionate care

Compassionate care leave

Can you to take time away from work to be with a dying parent, grandparent or a very close friend?

Someone very close to you may be diagnosed with a terminal illness and life expectancy is measured in months. If ever there was a time for togetherness, it’s during those precious last months.

A full-time job and family commitments allow for minimal connection. What if you were able to take some time off from work, confident that doing so would not negatively impact your employment? Maybe a week or so when the shock of the terminal diagnosis hits. And then here and there as your loved one most needs your emotional, and perhaps physical care support.

A good friend living in Ontario suggested this topic when he learned I was writing about end-of-life matters. He prompted me with “You know the big thing they don’t want you to know about?”. (By “they”, he meant employers.)

He reported that in his experience, most people are unaware employees can take a job-protected leave to care for loved ones.

Do you expect lawyers know all things legal? In this situation, I’m lumped in the bucket of the unaware. I had no idea.

Each province has its own employment rules. A quick Internet search took me to British Columbia’s Employment Standards Act, which provides for compassionate care leave in the province. The leave is not restricted to a dying parent or grandparent. Other family members qualify as well.

So, which family members? I challenge you to come up with a person who is very close to you who would not apply. There is a legal beast called the Family Member Regulation that provides an incredibly comprehensive list of close and not-so-close relatives. And there is a catch-al—any individual you consider to be (or who considers you to be) “like a close relative”, whether or not there is anything of a blood, adoption, marriage or common law connection.

For ease of identification, I will refer to that person as your “family member”.

A certificate from a medical doctor or nurse practitioner is required. The certificate must state that your family member has a serious medical condition with a significant risk of death within 26 weeks.

The purpose of the unpaid leave is “to provide care or support”, but there is no requirement for the medical certificate to say that care or support is medically required.

How long is the leave? You are entitled to up to 27 weeks of unpaid leave over a 52-week period. The leave can be taken in one chunk or one or more weeks at a time. Of course, the leave ends on the death of your family member. Specifically, at the end of the week in which your family member dies.

If your family member beats the odds and does not die after 52 weeks, you are entitled to another 27 weeks if you get another certificate.

The legislation protects employees by requiring your employer to place you, at the conclusion of your leave, in the same, or a comparable, position as you held before taking the leave.

The provincial government has a web page explaining this leave that can be found here.

It gets better.

Employment Insurance (EI) can be available, for up to 26 weeks. “Family member” is defined just as broadly in EI, with a similarly broad catch-all, i.e. including “a person who is considered to be like a close relative”.

A beautiful thing about these benefits is the 26 weeks of benefits can be shared with others, either at the same time or one after the other. A dying grandparent could have several children, grandchildren, and other people “considered to be like a close relative” sharing 26 weeks of EI benefits so they can help care for and support them.

Unlike for unpaid leave, there is a prescribed medical certificate that must support an application for compassionate leave EI benefits. In order to qualify, the doctor or nurse practitioner must certify not only that the family member has a serious medical condition with a significant risk of death within the next six months, they must also certify that the family member “requires the care and/or support of one or more family members over the next six months”.

That one certificate would be used for each EI applicant. Thankfully, the certificate includes broad definitions of care and support, with support defined as “all psychological or emotional support that the patient needs because of their state of health”.

Care needs aside, I have trouble conceiving of anyone facing a significant risk of death within the next six months not needing emotional support.

I’m thankful to my buddy for suggesting I shed light on these end-of-life matters. Please e-mail me with your questions or issues you would like me to write about.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Reasons you may not want to make your child your financial and care advocate

Decision-making power

Are you putting your (adult) child in a conflict of interest by appointing them as your attorney by power of attorney? Or as your representative with a representation agreement?

Of course you appoint your child. How could you find a more trustworthy candidate? How could that possibly put them in a conflict of interest? What other interest than your best interests could they have at heart?

To put it bluntly, their own—even if unintentionally.

I’ll give you a scenario to illustrate the conflict. You and your husband put your life savings into your home. You continue living in the home after your husband dies. Modest pension income covers your expenses. At some point, your cognitive decline becomes noticeable to your child. Concerned, they take you to your doctor who diagnoses dementia.

Years ago, you had the foresight to appoint your child both your attorney by power of attorney, as well as your representative by a representation agreement.

On one hand, thank goodness. There is someone you love and trust in place to handle your financial and care affairs. But on the other hand, you start feeling the discomfort of losing your independence.

A fall puts you in the hospital with a broken hip. On release, you need help with mobility and personal care. You also require supervision because of advancing dementia. Strange surroundings make you uncomfortable. You want nothing more than to get back into your familiar home surroundings. But it will require accessing the equity in your home to pay for significant renovations to accommodate your disability. That equity will also be required to pay for care and supervision.

The renovations and ongoing care expenses will be significant. The equity in your home could completely disappear.

Alternatively, the very best care facilities, along with supplemental one-on-one services, would also cut into that equity. Providing the level of support and care you can afford will cut sharply into your child’s inheritance.

Is the conflict of interest painfully clear?

Perhaps I am being cynical. Perhaps every child, no matter their own financial circumstances, would spare no expense when spending their anticipated inheritance for their parent’s comfort and care. Or am I’m being a realist?

There’s another factor. However well-meaning your child might be, they might be horribly ill-equipped to be your advocate. They might not know about what levels of home care can be provided by the health authority, or be unfamiliar with the kind of equipment and home supports that can help you stay in your own home.They might not know one-on-one service providers can be hired to support those in care homes.

Yes, anyone can make inquiries, but feeling your way through unfamiliar territory can be overwhelming and is never as effective as knowing the ins and outs.

I have looked into alternatives. Are there folks with experience and expertise in end-of-life matters who offer their services to act as attorney and representative?

Imagine the peace of mind of appointing a professional advocate with that expertise.

You can keep your kids in the loop by giving them the authority to monitor the work of the professional, while giving them the peace of mind their parent has an experienced and capable advocate.

Are professional advocates available? I’ve come up empty in my superficial search, but I might not know where to look. If they exist, they’re not well advertised.

If you are aware of a business with professional advocates who provide those services, please let me know and I will pass the information along.

I envision a service would provide candidates with experience in elder care, who are carefully vetted and bonded. The professional would be required to keep diligent records of their activities and reasons for their decisions, and provide transparency to whoever is the “monitor” and careful oversight by the business that employs them.

Would you be interested in accessing that kind of service? Are you someone who possesses the life experience that would make you an excellent health care and financial affairs advocate?

Please e-mail me and I’ll share with you the results of my inquiries.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

Conflicts of interest can be found in many walks of life

Conflicts of interest

Next week I plan to write about conflict of interest in the context of powers of attorney and representation agreements but this week, I will set the stage by writing about conflicts of interest generally. They’re everywhere.

Many columnists, including me, have conflicting interests. I am a writer who is interested in providing helpful information about end-of-life matters to the public. I am also a lawyer running a law firm, interested in building my clientele.

I could use my column to persuade readers that particular legal services are necessary, even if that might not be so. I could choose not to provide information and links to resources allowing for results to be achieved without incurring the expense of a lawyer, and I could describe myself in a way that implies, or outright states, I am the best person to go to for the legal services I provide, even though there are many lawyers who provide the same services.

Those conflicting interests should be kept in mind any time you read a column written by a business owner or service provider.

Businesses are often in conflict if potential customers rely on them to help decide what products or services they need. The interest of providing reliable advice often conflicts with the interest of maximizing sales. A classic example is an unscrupulous automotive shop, where you might be given a laundry list of required services when taking your vehicle in for an oil change.

But automotive shops don’t have a lock on conflicts that lurk any time a business has expertise that the customer needs to make a purchase decision. And that includes law firms.

For example, a parent might come to me with an old will appointing guardians for their children who have since become adults. They often assume a new will is necessary because of the significant change that guardians are no longer required.

Advising them a will doesn’t require updating solely because guardian appointments are no longer required conflicts with selling will services.

So, conflict of interest should be considered any time you rely on a business to advise you about what products or services you need.

In my view, the worst of conflicts are with politicians looking to be re-elected. It’s what leads me to often exclaim how much I hate politics.

For re-election, a politician needs popularity with a majority of the voting public. But to do the best for his or her constituents, the politician must, at times, implement important though unpopular policies, such as those to save the environment or help minorities. Implementation of the Medical Assistance In Dying (MAID) laws was significantly delayed, taking two series of court battles before the Supreme Court of Canada to finally force the issue because of this horrible conflict of interest.

My wife thinks I’m overly cynical, always skeptical of what selfish interest might be driving what we’re being told. She’s probably right. It’s my cynical side that led me to ponder conflicts of interest in the context of powers of attorney and representation agreements.

If you have ideas about what I’m referring to, please send me an e-mail with your thoughts. I’m interested in knowing how broadly my cynicism is shared.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

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About the Author

Lawyer Paul Hergott began writing as a columnist in January 2007. 

Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety.  It was published weekly for 13½ 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’s 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 [email protected] with legal questions and issues you would like him to write about.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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