It’s not all about the wills when it comes to end-of-life planning. Wills deal with what happens to your stuff, but what about what happens to you?
"In Alberta, how our legislation is set up is you have really three different estate planning documents. The will is the one that everybody knows about. The personal directive and enduring power of attorney are documents that cover what happens when you lose mental capacity, but you haven't died yet," offered Matthew Kaup, lawyer and partner with Kaup Law Office on St. Thomas Street.
Personal directives deal with appointing someone to make your personal and your medical decisions for you if you lose the ability to do that yourself.
While the elderly have more instances of dementia and comprise the majority of people who need to have medical decisions made on their behalf, younger people can still experience accidents that put them in the same situations. That's why Kaup recommends that people deal with these no matter what age they are.
Being prepared is really the name of the game, he explained. Since no one can predict the future, having your wishes put down in a legal document is, simply put, everyone's best move.
Kaup continued that preparing your personal directives and your enduring power of attorney are the best gifts you can leave to your loved ones in the case that you need them to take care of you.
"If you've lost your mental capacity, you're not too concerned about this kind of thing. It's whoever's caring for you that has to figure it out."
If there's a situation where someone has neither of those documents and they lose mental capacity, commonly the spouse will be placed responsible for what happens next.
If there is some family conflict, it can cause problems. Kaup has seen cases where the spouse is trying to make decisions for the person who has lost capacity but the parents don't agree with those decisions.
"There's no personal directive that clearly gives the authority to the spouse or to somebody else. It just opens the door for conflict," he said. "Probably the bigger issue is when there's not a spouse, and it's not clear who the next man up, if you will, is. That's really where you run into these problems where someone's having to go to court and get a court order giving them this authority that the personal directive would have done."
These circumstances might not be pleasant to think about, but that doesn't make them any less important. Kaup noted that when clients come in to his office to get their wills done, it makes sense to have these other legal documents taken care of at the same time. If they aren't already on the client's list, then he recommends it.
"I recommend it, or I give them the option, at least. Sometimes clients will say, ‘no, I'm just looking to get my will done.’ That's more than fine. It's totally up to them, but I at least make them aware of it and let them make the decision from there."
