Estate planning at the end of life

Estate planning is easy when you’re on death’s 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’s an unending list for a young person with a full life ahead of them. Here are a few off the top of my head:

• Stating 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’s financial situation tanks with significant debt

• A child dies

• An executor dies or your preference of executor changes

• Your financial situation significantly changes

This 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 to 30 years of life.

I recently had one client in her 70s laughing when I pointed out she could end up falling for a hot little 60-year-old. It’s 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’ve transferred title to a disapproving child.

Lawyers do their 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’s share to go to their children (your grandchildren). But many contingencies cannot be planned for in advance, which is why it’s important to review your estate plan from time to time. This is a topic I’ve written about before. If you cannot locate that column, please e-mail me and I’ll 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.

There is no need to re-write your will. You can give your assets away while you’re alive.

(Though maybe wait out the prognosis a bit while you exhaust care options. Recently 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’s 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 with power of attorney, giving them both the power, as well as the clear instructions about on what to do on your behalf if you lose that capacity as your medical condition continues to deteriorate. Then it’s up to that person to fulfill your wishes before death occurs because a power of attorney has no authority after you die.

We never know when something might suddenly occur that takes away our cognitive capacity, whether it be a medical or traumatic event. You can choose at any stage of life to appoint a person with 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 for power of attorney don’t include those powers.

Next week, I plan to tackle the subject of MAID.

I recently learned that in certain circumstances, MAID can proceed even if you’ve lost the cognitive capacity to give final consent. That gives us the luxury of prolonging our lives without the fear our wish to die when we chose to will not be stolen because our cognitive capacity has slipped away.

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