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When updating your estate plan, it’s important to consider who will be the key decision-makers on death and on incapacity. Understanding these roles can help you prepare better for your future and make informed decisions about your property and personal care. This blog highlights the responsibilities of fiduciaries in the estate and incapacity planning context.
An executor is the person (or people) appointed under a deceased’s Will who administers a person’s estate on their death.
The following list (which is not exhaustive) highlights the core responsibilities of an executor:
The complexity of the estate will depend on a number of factors, including the nature, situs, and value of the assets, debts, and liabilities of the deceased, the number of beneficiaries, and managing family dynamics, to name a few. These factors can create challenges that require careful navigation (often with the help of professionals).
A trustee is a person who holds title to property on trust for the benefit of other persons or for certain specific purposes. A trustee can be appointed under an inter vivos trust or a testamentary trust. Often for a testamentary trust, a trustee may be appointed as the executor of the estate and then will continue to act as the trustee for ongoing testamentary trusts created under the Will.
The core responsibilities of a trustee generally include the following:
A trustee’s responsibilities can last for many years, depending on the terms of the trust. For example, if funds are set aside for a minor until they attain age 21.
An attorney for property is a substitute decision-maker appointed under a Continuing Power of Attorney for Property or equivalent. An attorney for property can make decisions about your financial affairs, including, for example:
An attorney for property acts in the best interest of the individual ensuring their financial well-being. He or she steps into an individual’s shoes and, if the Continuing Power of Attorney for Property is a general one and has no conditions or restrictions, can do everything the individual can regarding his or her property and financial affairs other than make a Will.
The term “attorney” in this context does not refer to a lawyer or legal counsel, but to the person appointed as a substitute decision-maker under a Continuing Power of Attorney for Property or equivalent.
An attorney for personal care is a substitute decision-maker appointed under a Power of Attorney for Personal Care or equivalent. An attorney for personal care can make decisions about your health and medical care, housing, and other aspects of your personal care such as diet and clothing.
As one client described it, an attorney for personal care is the person who will “feed me apple sauce.” An attorney for personal care makes decisions about medical treatment and care plans, which may be on an ongoing basis or in an emergency, and advocates for an individual’s wishes and best interests. These can be very emotional decisions.
All these roles operate in different contexts and require a high level of responsibility. It’s important to distinguish between and understand each role to ensure you are choosing the people best suited for each job.
Marly Peikes is a partner at O’Sullivan Estate Lawyers. Her practice includes all aspects of estate and trust planning, estate administration and estate dispute resolution. Marly focuses on assisting clients in organizing their financial affairs during their lifetime through creative estate planning strategies which balance each client’s unique needs with corresponding estate administration tax and income tax considerations, all while ensuring that each client’s objectives are achieved and optimized. This article originally appeared in the O’Sullivan Estate Lawyers blog. Used with permission.
Notes and Disclaimer
Content © 2024 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.
This article is the opinion of the writer and is meant to be general in nature, limited to the law of Ontario, Canada. 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.
Image: iStock.com/shironosov
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