Choosing the right person to be your decision-maker under a Power of Attorney for Property document (in this article referred to as your “POA”), and to be the Executor of your Estate is in our view, one of the most critical decisions you will have to make in your lifetime. Too often, financial abuse, discord between family members and unnecessary legal fees occur when we put the wrong decision-makers in charge of our affairs.
We at NIKA LAW encourage our clients to look to private trust officers and third-party institutions as possible alternatives to naming family members for these important roles. Yes, a trust companies do charge fees, but those charges will seem negligible in light of what estate and power of attorney disputes can end up costing in legal fees. Good lawyers do not come cheap!
If you are adamant about appointing family members to take on your power of attorney responsibilities in your lifetime, or as the Executor of your Will, here are what we consider the top 5 required skills or qualities they should display:
1.TRUSTWORTHY. This may seem trite and we always want to think the best of our loved ones, but dishonest acts usually occur when “no one is watching “. Choose the person you trust implicitly, but also the person that is most trusted by anyone with a financial interest in your Estate.
2.RATIONAL. Do not choose the emotional or over-sensitive member of your family. Death and incapacity are situations which are inherently filled with emotion. Your POA and your executor should be able to think and make decisions based on rationale thinking, not his or her heartstrings.
3.SOMEONE WITH THE TIME. . Managing all of your property and finances when you are incapable, or being the Executor of your Estate once you die is no small task. In your life this may involve day-to-day management and upon death, estates can take anywhere from one to five years to administer. Don’t choose someone who is overly busy with their own life, job, or kids of their own.
4.NEUTRAL. Do not appoint someone you know as your POA or Executor that has an issue with anyone else in your family. This is a sure recipe for disaster. Although the person you appoint may be the apple of your eye, you may be fueling existing conflict or resentment within the family by choosing one person over another. An even worse decision would be to name people jointly who do not usually see eye to eye. Pick the “Switzerland” type!
5.ONTARIO RESIDENT. Assigning POA or Executor responsibilities to someone who does not ordinarily reside in Ontario can be problematic. Think about what is going to be practical. As well, know that in Ontario, under the Estates legislation, grants of administration to a non-resident may require that person to post a security bond with the courts which can be up to two times the value of the estate assets. Furthermore, the legal fees incurred to have a non-resident appointed as the Executor is almost always higher.
In closing this post, we simply want you to think carefully about who you are nominating to act on your behalf upon any potential incapacity or upon your demise. If you at a minimum consider our top five factors, you will have reduced the risk of disputes, litigation and costs at a later date. Don’t discount trust companies only on account of fees, but give them careful consideration as part of your estate plan.
