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6 tips to plan for incapacity

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Most of us don’t want to think about the possibility that, at some point in our lives, we may have the physical or mental inability to manage our affairs. Incapacity may seem unlikely or a far off concept, but it’s important to be ready for a time when you may be unable to care for yourself, your property and your assets. To start your plan, consider these six tips.

1. Spend more time on a power of attorney (PoA) than a will. With the potential for longer-term incapacity, PoAs are “an integral part of the overall estate plan,” says Richard Niedermayer, partner at Stewart McKelvey.

2. For protection after incapacity, ensure the PoA for property is continuing (or enduring) and is under the applicable provincial law, says Ed Esposto, partner at Blaney McMurtry.

3. Choose trusted attorneys or appoint trust companies for the process. “If you have two or three kids fighting among each other, it’s not going to improve by picking one of them to be the attorney,” says Niedermayer.

4. Consider provisions in the PoA for gifting and settling funds into a trust, and for amending beneficiary designations. But be wary of gifting legislation in your region. Alison Oxtoby, partner at Entrust Law in Kelowna, says that in B.C., “if you want to make any significant gift, the authorization has to be in the [PoA].”

5. Specify in the trust document whether power to amend terms may be exercised only by the donor or by the attorney under a continuing PoA.

6. Beware of inadvertent revocation of the PoA. Oxtoby says clients may be asked to sign banks’ own PoA documents. “But in doing so, [clients] revoke the nicely drafted power of attorney that we planned to allow them to carry out further planning after their loss of capacity. It happens all the time.”

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