Find A Good Ol’ Trustee Person to Act on Your Behalf

Who have you appointed as your power of attorney? How about the estate trustee in your will?

People don’t often give enough thought to the appointment of their powers of attorney and the estate trustee for their wills. We won’t even get started about the people who don’t even give a thought to the need for these important documents to begin with (we will save that for another post all together)! If you don’t appoint anyone then you lose control of who acts on your behalf.

If you pass away without a will appointing an estate trustee, then your spouse/partner or a close relative must apply to the court to be appointed as an estate trustee without a will. You also run the risk of relatives fighting for the appointment. In these cases, the matter gets referred to a judge to be decided. This not only seriously slows down the administration of your estate but can deplete your estate assets in legal fees. 

If you don’t appoint a power of attorney for property, then the Public Guardian and Trustee becomes your statutory guardian. Your spouse, partner, or relative would then have to apply to take over from the Public Guardian and Trustee. This is expensive and takes time to achieve.

In the case of your power of attorney for personal care, the Health Care Consent Act dictates who can act for you if you don’t appoint someone yourself. This Act sets up a hierarchy of who has dibs on applying for the job: first, it’s your spouse/partner, then your parent, then your sibling and lastly, any other relative.

The problem in all these cases is that the person appointed by statue, or by their own application, may not be the person you would have chosen to act for you. Whether it’s administering your estate after you’re gone or making important decisions on your behalf while you are alive, this is not an appointment you should take lightly. For either position, it’s often best to find a trusted family member or friend who has a genuine concern for you and your well-being.

We often see clients come in wanting to appoint their children as their powers of attorney and estate trustees. They want all their children named jointly, not because they are all best for the job – no, it’s because they don’t want any hurt feelings. This is the worst way to approach the appointment of your power of attorney or estate trustee. Not everyone is cut out for this job, and they shouldn’t be given it simply because you don’t want them to feel left out. You need to consider whether your children will get along, or whether they will disagree to the point that little gets accomplished on your behalf. If you feel you must appoint all of your children, then you might want to consider appointing them “joint and severally.” This means that they don’t have to be unanimous in their decisions. But as you can imagine, that can open a whole other can of worms.

Be pro-active! Think hard about who cares enough about you, and knows and respects your wishes enough to see your intentions through.   

Robin K. Mann, Associate Lawyer

rmann@andriessen.ca