WHAT REALLY MATTERS?

TELEHEALTH PRESENTATION October 21, 2014

Heather DixonPULLAN KAMMERLOCH FROHLINGER

WHAT MATTERS MOST?

• Most people want a Will

• Wills deal with your possessions AFTER your death

• Important that the right person get the right things

WHAT MATTERS MOST

• A will can be an important part of a good estate plan

• A will can save time and money after a person’s death

• A will can ensure that underage children are provided for

• A will can ensure that you determine who gets what…. And so much more

WHAT MATTERS MOST?

• BUT…..

THAT’S ONLY IF THERE IS ANY “STUFF” LEFT OVER AFTER YOU DIE!

AND SOMETIMES THERE IS NO STUFF LEFT OVER- NOT BECAUSE OF WHAT YOU DID

BUT BECAUSE IF WHAT YOU DIDN’T DO!!!!

WHAT MATTERS MOST

• BEFORE DEATH DOCUMENTS ARE OFTEN FORGOTTEN

• NEED TO THINK OF 2 THINGS:

• WHAT ABOUT YOU IF YOU BECOME ILL?

• WHAT ABOUT YOUR “STUFF” IF YOU CAN’T HANDLE YOUR OWN AFFAIRS?

BEING PREPAREDSTUFF YOU

BD

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BEING PREPARED

STUFF YOU

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WILL FUNERAL

BEING PREPARED

STUFF YOU

BD POA HCD

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WILL FUNERAL

WHAT MATTERS MOST

• Most important- ABOUT THE PERSON

• HEALTH CARE DIRECTIVE– Simple or complex– Homemade or made by lawyer or from internet

– Most important point about a HCD

– THE PROXY

WHAT MATTERS MOST

• IMPORTANT

– If you appoint a PROXY, then it is essential that you have a discussion with that person about what YOU want, need or think about end of life issues.

– The DISCUSSION is your responsibility

WHAT MATTERS MOST

• HEALTH CARE DIRECTIVES (HCD)

• Legislated Since 1992

• Under Utilized

• Increasingly Important

• Not A “Living Will”

WHAT MATTERS MOST

• A PROXY is a person (or, more than one person) who will make decisions for you REGARDING YOUR HEALTH or MEDICAL TREATMENTS

IF (AND ONLY IF) YOU CANNOT MAKE THEM FOR YOURSELF

WHAT MATTERS MOST

• A PROXY CANNOT OVER-RIDE A COMPETENT PATIENT- BUT CAN INSTRUCT A DOCTOR OR OTHER MEDICAL PROVIDER

• A PROXY MUST BE ABLE TO MAKE AN INFORMED CHOICE AND THEREFORE MUST BE ABLE TO SPEAK TO THE MEDICAL PROVIDER

WHAT MATTERS MOST

• INFORMED CONSENT

• Decision maker must understand the nature of the treatment proposed, the benefits of the treatment, the risks of the treatment

• Can’t do that if you don’t know what you have or will have!

WHAT MATTERS MOST

• ADVANCED CARE PLAN or a HEALTH CARE DIERCTIVE-

Both documents still require that any consent to treatment must be INFORMED consent

WHAT MATTERS MOST

• Advantages of HCD FORM in Manitoba

• Simple form• No witness required• Available to all• Easy to change

WHAT MATTERS MOST

• Recommend re HCD

– Don’t use “legalese”– Only one proxy at a time– Keep proxy information up to date– Give proxy a copy of HCD– Give your doctor a copy of the HCD– Keep a copy of the HCD with you– Keep a copy of HCD in your car, ERIK etc

WHAT MATTERS MOST

• “DNR”- is not recommended

• If complex instructions- seek medical advice- but ultimately- even complex instructions will not- cannot -override

• INFORMED CONSENT

WHAT MATTERS MOST

• Second most important document-

• POWER OF ATTORNEY

WHAT MATTERS MOST

• POWER OF ATTORNEY- – Before death– Deals with your property– Homestead exception re spouses

• Must be competent (“legal capacity") to sign

• Biggest consideration: TRUST• Next consideration:ABILITY

WHAT MATTERS MOST

• A Power of Attorney document is a document that gives the power to another person the right to deal with your property

BUT THEY DO NOT OWN IT

• ALL actions taken by attorney must be in DONOR’s best interests- regardless of what the attorney’s interests are

WHAT MATTERS MOST

• A Power of Attorney document is a document that gives the power to another person the right to deal with your property

BUT THEY DO NOT OWN IT

• ALL actions taken by attorney must be in DONOR’s best interests- regardless of what the attorney’s interests are

WHAT MATTERS MOST

• POWER OF ATTORNEY- ABUSE PREVENTION

• Use oversight/ reporting paragraph• Make your wishes known well in advance• Frank discussion with all the family as to who

you name and why• Introduce your attorney to your bank• Warning re cash cards

What matters most

• POWER OF ATTORNEY

• Should seek legal advice• Enduring Clause is important• Must have Affidavit of Execution attached– Signed in front of restricted class of witness– States person competent at signing

WHAT MATTERS MOST

• Power of Attorney- one last thing

• Who will make decision re :personal care placement? Not health decision- not about your property

• Recommend in PoA-– Advice– Witness

WHAT MATTERS MOST

• Options if no Power of Attorney

• VERY LIMITED

– 1 Committeeship

– 2 Public Trustee as Committee/ appointed

WHAT MATTERS MOST

COMMITTEE- Private

*Application to Court *A person residing in Manitoba*Interest or connection with you*Affidavits from 2 different Doctors in Manitoba*Some idea of assets

WHAT MATTERS MOST

• Application may be granted

– If all relations of equal or prior right to Applicant have consented (e.g. parents, siblings, children, nieces/nephews etc)

– Public Trustee approves– Must file accounting within 60- 90 days– Must file annual accounting

WHAT MATTERS MOST

• PROBLEMS

– Takes time– Expensive (can be 10 x more than PoA)– Subject to challenge (Increased expense)– Lack of cooperation – Court scrutiny– No latitude- no margin for error

WHAT MATTERS MOST

• PUBLIC TRUSTEE- upside

– Thorough– Good stewards- earn interest– Not swayed by family politics– YOU are their focus

WHAT MATTERS MOST

• PUBLIC TRUSTEE- downside

– Doesn’t matter what Will says- can sell everything owned by person

– Charge fees for everything in and everything out– Can sell family property if needed for upkeep (e.g.

cottage)– No personal relationship– Family might not have say in personal care

WHAT MATTERS MOST

WILL

• YOU decide who gets what• Only spouse has RIGHT to expect something in

a Will- or without a Will• YOU decide who will be in charge

WHAT MATTERS MOST

WILL

• Makes YOUR wishes clear• Especially important if beneficiary is under a

disability• Fastest, most efficient• Executor under court supervision-

WHAT MATTERS MOST

WILL

• Takes time to prepare• Good review of Assets/ type of asset is

essential• Who gets what and what if person

predeceases you• Up to date is essential

WHAT MATTERS MOST

WILL

• Executor has right to make funeral arrangements before Probate-

• Funeral expenses can be paid by bank without Probate

• Executor can be paid fees

WHAT MATTERS MOST

PROBATE

• Process of “proving” the Will– Person entitled to handle estate (Executor)– Swear to obey law– Proven value of the estate– Who receives estate

• Fees are low in Manitoba

WHAT MATTERS MOST

NO WILL

• Funeral arrangements by Next of Kin- arguments• No will triggers Intestate Succession Act• Only a person residing in Manitoba can apply to

Court to be appointed administrator• Time consuming and frustrating• Out of Pocket expenses might take long time to be

reimbursed

WHAT MATTERS MOST

PRE-PRINTED FORMS- WILL/ PoA

• Not recommended• Mine field for mistakes• Can be more expensive- • potential for abuse• Conflicting instructions• Inadvertent failure of gifts

WHAT MATTERS MOST

• BE PROACTIVE- BE PREPARED

• MAKE DECISIONS BEFORE YOU “HAVE” TO

• STAY INFORMED

• THANK YOU