Choosing your Attorney, Executor and Representative
Choosing who to appoint as your attorney, executor and representative in your estate planning documents is one of the most important decisions you must make during the process of creating your estate plan.
The most important thing is to choose someone you trust with the powers that these various documents grant them. Other general considerations are to always consider appointing at least one alternative to ensure that in the event the first person you appointed is unable or unwilling to act for some reason, you still have a plan in place. Additionally, you must choose someone over the age of 19 who has the requisite capacity to act on your behalf. Try to choose someone who is younger than you (at least as your alternate), and therefore less likely to predecease you. Lastly, choosing someone who lives close to you will make their job easier, as there will be meetings and appointments for them to attend.
You may appoint more than one person to act at the same time. In this case, you will need to decide if they are required to act together or if they are permitted to make decisions independently. If your appointees must act together, you it is prudent to set out your expectations regarding what will happen if the executors, attorneys or representatives do not agree. For example, will unanimity be required to make decisions or will majority rule?
Your executor, attorney, and representative all have different duties and powers which are important to keep in mind when choosing who will be appropriate.
A Power of Attorney is a document that will appoint an agent known as your “attorney” and grant them the power to manage your legal and financial affairs on your behalf in the event that you are unable to, for example, if you are incapacitated or are out of the country.
In the event that your attorney does not manage your financial affairs carefully, the value of your assets may decline. Additionally, there is always the possibility that your attorney may use their power inappropriately for their own benefit, rather than solely for your benefit, as intended.
Therefore, when choosing an attorney, keep in mind what powers you will be granting that person. Above all, your attorney should be someone you trust to make the best decisions on your behalf, as well as with access to your personal information.
Choosing someone with some understanding of financial and/or legal affairs will be helpful, as they will need to manage your financial affairs prudently and correspond with financial institutions on your behalf. Furthermore, choosing an attorney that is familiar with your wishes and situation is a good idea. You will also need to consider whether you want to speak to those people in advance to confirm with each person that they are willing to act as your attorney, and understand the commitment they are making.
Many people appoint a spouse, adult child, trusted relative or friend that fits the above description. If you do not feel you have anyone appropriate to appoint, or feel that your financial affairs are too complex for a relative or friend to manage, you can appoint a professional or a trust company to act as your attorney. Each professional trustee will likely have varying requirements and fee structures so it is best to do your research prior to appointing them as your attorney in your Power of Attorney.
Your representative, appointed in a Representation Agreement, has the power to make health and personal care decisions on your behalf in the event that you become incapacitated. Personal care decisions include matters respecting your living situation, diet, employment, and dress, as well as your association in social, educational, and vocational activities. Health care decisions include consenting to major surgery and diagnostic or investigative procedures, as well as routine health and dental procedures.
As with appointing an attorney and executor, your representative should first and foremost be someone that you trust, such as a family member or close friend. Again, this can be a time-consuming position so ensure that you pick someone who is nearby and has the time to carry out the responsibilities.
Because your representative will have the power to make very personal decisions for you, choosing someone who has similar values as you and who you think will make decisions for you that you would make yourself is a good idea. It is prudent to discuss your wishes respecting your medial and personal care with your representative and letting your representative know if your wishes change over time.
Your executor will have the responsibility of taking control of your assets when you pass away and distributing your estate according to the terms in your will. Being an executor can be a complex job, depending on the size and intricacy of your estate. The executor’s duties will include taking control of the deceased’s assets, paying debts, notifying beneficiaries, obtaining a grant of probate, if necessary, and keeping careful accounts. Choosing someone who has some experience dealing with financial institutions and managing money will make the job of executor much easier.
Furthermore, being an executor can be a time-consuming responsibility, and one which can last anywhere from one to several years. Make sure that you pick someone with both the time and organizational skills to carry out the job.
Most people pick a family member such as a spouse or child. Appointing a spouse is a good idea when the will states that everything will go to the surviving spouse, as it simplifies the process. However, this may not be a good idea if your spouse is elderly, unhealthy, or financially inexperienced. Picking a family member such as an adult child or sibling is also common, as they will likely know the most about your affairs, and will have an interest in seeing your estate distributed quickly and fairly.
If you don’t have anyone who you think is appropriate to appoint, you can appoint a professional or trust company. This can be a great alternative, particularly if your estate is complex, although keep in mind that they will charge a fee to act. Fees are often based on the value of your estate and vary from company to company.
Lastly, remember to review your documents every few years to ensure that the people you have appointed are still appropriate. You will want to ensure that the people you have chosen are still capable and willing to act on your behalf. Additionally, in the event that you appoint your spouse (whether legally married or common law) to one of these positions and subsequently separate from them, the appointment will no longer be valid.
If you would like to learn more about the estate planning process, or if any of your documents need updating, please do not hesitate to reach out to one of our lawyers practicing in the area of wills and estates.
Author: Jane Otterstrom
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250) 448-2637 or any of our lawyers practicing in the area of wills and estates at the following:Jennette Vopicka: firstname.lastname@example.org Danielle (Dani) Brito: email@example.com Jane Otterstrom: firstname.lastname@example.org