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Heading into a new year is always a great time to think about what you need to accomplish over the next 12 months. Preparing or updating your estate plan is usually high on that list. But in some cases, you may not be as concerned with your estate plan as you are with your parents’ estate plan. As your parents age, you may begin to worry that they may not have their affairs in order or they may have a plan that is woefully out of date.
Knowing that they will likely need to step in and help, we often have a child or children of elderly parents contact us to try and get their parent or parents an adequate estate plan. If you are in this position, there are many considerations for you regarding how to help your parent or parents out. Here are few do’s and don’ts to keep in mind:
An estate plan usually involves talking about things that can be “off topic”: death; money; family relations; etc. Parents may be hesitant to prepare an estate plan because they are uncomfortable talking about these topics due to cultural or generational norms. When approaching your parent about their own estate plan, keep in mind that this may understandably be a difficult topic for them, and as such you should tread lightly. This is not something to bring up at the family’s holiday dinner!
Similarly, a major deterrent can be language barriers. Estate planning can be a complicated area especially when English may not be your parents’ first language.
There are many great lawyers in Ontario who speak more than one language, so it is important to do some research so that your parent feels like they can adequately communicate with their lawyer. A translator may also be hired to assist. Although there may be added expenses to consider, if this expense means your parent can accurately and effectively communicate their wishes, then the added costs will be worth it in the long run.
Although you may try to help your parent by helping them to arrange a meeting with a lawyer to discuss their estate plan, don’t be surprised when you are asked not to attend the meeting. Remember that your parent is the client – it is their wishes and their instructions that the lawyer must follow. So, while there is no problem with you doing some research to find potential lawyers, it is ultimately up to your parent to retain the lawyer, meet with the lawyer, and provide the lawyer with their instructions.
Similarly, don’t try to communicate what you think your parents’ wishes are to their lawyer. Even if your parent feels more comfortable with you speaking on their behalf, again, they are the client and they must be the one speaking with the lawyer.
As important as an up-to-date will is, so too are powers of attorney for property and for personal care. As parents get older, their mental capacity may start diminishing, and they may need a loved one to step in and help them with their finances or their medical and other personal decisions. In the event a parent loses their mental capacity and there is no power of attorney in place, you or another loved one would need to go to court to apply to become a guardian in order to be able to help out. This can be a lengthy, expensive, and intrusive process. Having powers of attorney in place can prevent this.
Powers of attorney are not just helpful if your parent has diminished capacity. As our parents get older, it may be harder for them to attend the bank or look after their monthly bills. If a valid power of attorney is in place, the attorney can step in and help with these day-to-day tasks.
As your parent gets older, there is always a greater risk that they may lose the required mental capacity to make or update a will and power of attorney documents. Although ultimately it is up to your parent whether they want to do any estate planning, it is always recommended to have these conversations sooner rather than later.
While it should go without saying, you should be leaving your parents’ estate planning to their estate planning lawyer. Trying to take matters into your own hands and look for quick fixes – such as putting your name on all of your parents’ assets to avoid probate – almost always cause more problems than they solve (you can read about some of such issues here and here).
Involving professionals also protects your parents’ plan from any potential challenges and family disputes. When a lawyer is involved, there is less risk that someone can later claim your parent lacked the required capacity to make their will or was unduly influenced in some way.
Your parents may not want to prepare a will or update their estate plan, and this is ultimately their decision. While not ideal, there is not much you can do aside from having an open and honest discussion with your parents about why they should have a plan in place.
The above are just a few considerations to keep in mind when helping your parents (or any other family member) with their estate plan. The old saying is that “no good deed goes unpunished,” having these discussions with your loved ones and providing appropriate assistance are always good resolutions to have.
Stephanie Battista is a partner at O’Sullivan Estate Lawyers. She practices exclusively in estate and trust law, focusing on all aspects of estate planning and estate administration in order to provide clients with sound and helpful legal advice. She advises clients on their succession plan including wills, trusts, powers of attorney and domestic contracts. She also advises executors, trustees, and attorneys on their duties and obligations, and provides guidance through the complexities of the estate administration process as well as estate and trust accounting. This article originally appeared in the O’Sullivan Estate Lawyers blog. Used with permission.
Notes and Disclaimer
Content © 2023 by O’Sullivan Estate Lawyers LLP. All rights reserved. Reproduction in whole or in part by any means without prior written permission is prohibited. Used with permission.
The foregoing is for general information purposes only and is the opinion of the writer. It is not intended to provide specific personalized advice on any individual situation, including, without limitation, investment, financial, legal, accounting or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your particular circumstances.
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