While you do not necessarily have to have both powers of attorney and a will, we highly recommend that everyone have both powers of attorney and a will. The reason being is that these two documents complement each other rather than compete with each other.
Powers of Attorney take effect when the testator is living but not able to make decisions for him or herself whether the person is mentally or physically incapable. Some examples of where a power of attorney would take effect include: a person who has been involved in a serious car accident and is in a coma; and, someone who is in the advanced stages of Alzheimer’s disease. There are two powers of attorney, one for personal care and one for property. The power of attorney for personal care gives your appointed power of attorney the ability to make decisions regarding your health care needs. Whereas, the power of attorney for property gives your appointed power of attorney the ability to make decisions regarding your financial needs such as daily banking and dealings with any vehicles, houses or cottages. However, once the person has passed away, the powers of attorney are no longer in effect and the person’s will becomes the authoritative document.
A person’s will only becomes effective when a person passes away. Up to that point, the will cannot be used by the executor or the beneficiaries. A will provides the executor with instructions on how to distribute the estate according to the testator’s wishes.
We are often asked by younger clients in their twenties and thirties why they would need powers of attorney if they are healthy. Most of these clients have a will to appoint a guardian for their children if they pass away, but do not have powers of attorney. However, we highly recommend that these clients also consider powers of attorney as well because no one is able to predict whether there will be a life altering event such as a car accident where the person will no longer have capacity for a certain period of time. If the person does not have powers of attorney and there is a dispute between family members regarding your health care needs, for example, the doctors may require the family to obtain a court order appointing a power of attorney which could waste valuable time.
If you would like to have your will or powers of attorney drafted please follow the link to our Will Questionnaire to get started today.