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Power of Attorney

Feb 06
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Understanding a Henson Trust in Manitoba for People with Disabilities

By Committeeship, Estates, Power of Attorney, Wills

Navigating the complexities of estate planning and ensuring financial security for loved ones with disabilities can be a daunting task. In Manitoba, one effective tool that people look at for its flexibility and protective benefits is the Henson Trust. This post aims to shed light on Henson Trusts, detailing their setup, operation, and associated risks to help Manitobans make informed decisions and help you consider if seeing a Winnipeg lawyer for the Henson Trust is the right way to help you plan.

What is a Henson Trust?

A Henson Trust, named after the landmark legal case that established its framework, is a unique type of trust designed to benefit individuals with disabilities (in this case, the “beneficiary”). It is a discretionary trust, meaning that the trustee has full control over if, when, and how the trust’s assets are distributed to the beneficiary. The primary goal of a Henson Trust is to provide financial support to a person with disabilities without affecting their eligibility for government assistance programs, such as the EIA or Manitoba Housing. This is because the assets held in a Henson Trust are not considered part of the beneficiary’s assets.

Setting Up a Henson Trust

Establishing a Henson Trust in Manitoba requires careful planning and adherence to specific legal requirements. The process typically begins with consulting a lawyer experienced in estate planning and trusts. The settlor, who is the person creating the trust, must draft a trust deed or will that explicitly states the trust’s discretionary nature. This document should appoint a trustee or trustees, outline the trust’s terms, and specify the beneficiary or beneficiaries. Choosing a reliable and trustworthy trustee is crucial, as they will have significant control over the trust’s administration and the welfare of the beneficiary.

Operating a Henson Trust

Once a Henson Trust is in effect, its operation hinges on the discretion of the trustee. The key part of a Henson Trust is that no one can require that the trustee pay any of the money to the beneficiary – that is how it avoids being included in the beneficiary’s assets. The trustee is responsible for managing the trust’s assets, making investment decisions, and deciding on the distribution of funds to the beneficiary. They must act in the best interest of the beneficiary, taking into account the beneficiary’s needs, government benefit eligibility, and the trust’s long-term sustainability. Trustees have the flexibility to disburse funds for a wide range of expenses, including living costs, medical care, education, and leisure activities, ensuring the beneficiary’s quality of life is maintained or enhanced.

Risks Associated with Henson Trusts

While Henson Trusts offer numerous benefits, they are not without risks. One significant risk is the possibility of the trustee choosing not to disburse any funds, especially if they are also the residual beneficiary of the trust. This scenario can occur if the trustee, motivated by self-interest, decides to preserve the trust’s assets for themselves rather than using them for the beneficiary’s needs. To guard against this risk, it is essential to choose a trustee who is trustworthy and has the beneficiary’s best interests at heart. Additionally, you can appoint more than one trustee or a professional trust company to ensure checks and balances are in place.

In conclusion, Henson Trusts offer a valuable estate planning tool for families wishing to provide for loved ones with disabilities, ensuring their financial security without compromising their access to government assistance. However, the success of a Henson Trust lies in its careful setup, the integrity and diligence of the trustee(s), and the ongoing management of its assets. By understanding the benefits and potential risks, Manitobans can make informed decisions that align with their estate planning goals, ensuring peace of mind and the well-being of their loved ones.

Henson Trust meeting
Sep 07
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Choosing an Executor for Your Will: Top 5 Things to Consider

By Estates, Power of Attorney, Wills

Creating a will is a bit like planning a neighbourhood gathering — you’re figuring out who gets what (picture the potluck dishes) and ensuring things run smoothly. And just like you’ need a coordinator for the party, you need to pick an executor for your will.

Your executor is like the captain of your post-life team, steering your affairs in the direction you wish. So, let’s stroll together through the top 5 things to consider when choosing your own will executor.

1. Trustworthiness

Just like you wouldn’t hand your house keys to someone you don’t trust, you shouldn’t select an executor you don’t have faith in. After all, they’ll be taking care of distributing your assets according to your wishes. Make sure the person you select is known for their integrity and honesty.

2. Organizational Skills

Handling a will involves a lot of paperwork and deadlines. Your chosen executor should be someone who’s good with details, timelines, and, let’s face it, a bit of bureaucracy.

3. Communication Skills

You’d want someone who knows how to diplomatically deal with Uncle Bob arguing over your famous lemon pie recipe, right? Much in the same way, your executor should bravely and tactfully handle any family conflicts that might pop up.

4. Availability and Location

Consider choosing an executor who is relatively local to you. This is very much like choosing a neighbour to water your plants while you’re gone. Having someone close-by can make the process smoother and faster, since they’ll easily attend to necessary paperwork and meetings. If you’re considering someone who lives outside of Manitoba, talk to us about that – there may be considerations ranging from the practical to the expensive (from a tax standpoint) that we’ll want to talk about.

5. Professional Assistance

Lastly, know that your executor can hire professionals to help, like us, your friendly neighbourhood lawyers. Any fees for legal assistance come out of the estate, not your executor’s pocket.

 

Choosing an executor is a critical step in creating your will. It’s all about making sure someone you trust has got things under control, just like the trustworthy neighbour you’d leave a spare key with. Remember, at Wolseley Law, we’re here to help navigate these decisions with you. Come and chat with us about your options.

Sep 07
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Crafting a Will in Manitoba: A Step-by-Step Walkthrough

By Estates, Power of Attorney, Wills

We get it, the thought of sitting down to craft a will isn’t exactly a walk in the park. But when it comes to safeguarding the future of your loved ones and your hard-earned assets, it’s absolutely worth it.

Allow us to guide you through the steps to creating a will in Manitoba – we promise, it’s less complicated than you think!

Step 1: Get Started (Don’t worry, we’re here with you!)

First things first, take a deep breath. Understand that you’re taking a crucial step towards ensuring security for your loved ones. Now grab a pen, some paper, and let’s gather a list mentioning all your assets (like your house, car, savings, investments) and personal items of real or sentimental value (items of jewellery, art, or even your well-cared-for houseplants!). We’ll send you an intake form to start thinking about these things, if you’d like.

Step 2: Choose the Beneficiaries

Next, think about who you want to pass these assets onto. These folks are known as your beneficiaries. They can be anyone you wish – your kids, other family members, friends, even a good cause that you feel deeply about.

Step 3: Name Your Executor

Now, choose a trusty person to carry out the terms of your will. This is your executor, (kind of like that reliable friend you’d nominate to water your plants while you’re away). This should ideally be someone you trust, who’s organized and impartial. See our hints on choosing an executor, here.

Step 4: Guardianship Decisions

If you have children under 18, it’s crucial to think about who you’d like to take on guardianship duties should something happen to you. If you have kids this is likely the main reason you’re making a will, so this decision needs careful thought and plenty of discussions with potential guardians.

Step 5: Create the Will

Ready to get going? Great! We’ll meet with you to take instructions from you regarding what you might want in your will. We’ll have lots of questions for you, but if you’ve done a little light prep work we won’t be asking anything that you won’t already know the answer to. It’s a conversation, not a quiz!

Step 6: Sign and Witness

In order for a will to be legally valid in Canada, it must be signed in the presence of two adult witnesses, who aren’t beneficiaries or the spouse of a beneficiary. Typically that’s two people from our office who are there to make sure that the witnessing complies with the law around wills.

Step 7: Keep it Safe

Lastly, we’ll send you home with your will. Find a safe and secure place to store your will where your executor can access it when needed. Make sure to tell your executor where you’ve kept it. This is often just a secure spot in your house.

And voila! You’ve successfully crafted a will. Remember, setting up a solid will is all about making things as easy as possible for your family and friends – let us help make that process a little easier for you.

May 09
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Dealing with pets in your will and estate

By Estates, Pets, Power of Attorney, Wills

You love your pet, and you want to make sure that he or she is taken care of after you’re gone. You may not know how to do this, but don’t worry: It’s easier than you think! In this article, I’ll cover the basics of estate planning for pets and how it can help the dog, cat, iguana or whoever you have in your life continue to be a good boy even after you can’t help them anymore. Because who’s a good boy? Your pet’s a good boy.

Pets are part of the family, so they should be protected and provided for in your estate plan along with other loved ones and assets

Pets are part of the family, and they should be protected and provided for in your estate plan along with other loved ones and assets. Pets are not just property, they are family members. They have feelings and emotions that can suffer when they lose their owner or guardian. In some cases, these animals have been with an individual longer than any human friend! They deserve to be included in your will as well as being cared for by someone who will love them just as much as you did when alive (or even more).

Plan early.

It’s never too early to start thinking about what will happen to your pets after you pass away.

However, if you wait too long, it may be too late. You need to make sure that your wishes are known by those who will be responsible for carrying them out.

Consider hiring a lawyer to help you create an estate plan.

If you have pets, it is important to have a plan in place for them. A lawyer can help you create a will and make sure that the right people are named as executor(s), trustee(s), successor trustee(s), power of attorney and/or guardian(s). They also know how best to deal with pets in these documents.

A good estate planning lawyer will ask questions about your pet’s needs so they know what type of caretaker would be best suited for them; many lawyers have connections with local shelters that specialize in helping animals find new homes when their owners pass away or become unable to care for them anymore

Although courts see pets as property, choose a guardian for your pet.

Although the courts see pets as property, you should choose a guardian for your pet. A guardian can be a family member, friend or neighbor. Alternatively, it could be a professional caregiver who specializes in taking care of animals.

If possible, appoint two people as co-guardians so there’s someone who can step in if something happens to one person before the other dies or becomes incapacitated themselves (elderly parents often worry about this).

Provide for your pet in your will and other legal documents.

If you have a pet, it’s important to think about how they’ll be cared for after your death. If a family member or friend isn’t willing or able to take on the responsibility of caring for your pet, consider other options such as finding them a new home with someone who is able to do so. Another option is providing money in your will that allows them to be taken care of by an animal shelter or rescue group until they are adopted into their new home.

Pets can be the subject of gifts for their care, or even trusts that allow funds to be paid out every year that they survive you in order to ensure continual care. The options for choosing how to provide for your pets are nearly limitless.

Arrange for care while you’re alive, if possible.

If you have a pet and are experiencing a move into a personal care facility, it may be valuable to consider if an earlier move for your pet is a better option. This may help ease your pet’s transition into its new home, and still allow you to visit, or be visited by your pet, from time to time.

You should also make sure that any medical issues are taken care of before arranging for someone else to take over as caregiver: ensure that the animal has had all its vaccinations (and check back periodically), and bring it in for regular checkups from time-to-time so that any potential problems can be caught early on and treated accordingly by a veterinarian.

Conclusion

Pets are a big part of our lives, and they deserve to be taken care of. They’re also part of your estate and will, so it’s important to plan properly for them. If you don’t want to leave money or property directly to your pet, consider naming someone else as guardian who can take care of them in the event of your death or incapacity. This person should be someone who loves and cares about your good pup or kitten or other friend as much as you do and who is willing to give them all the love that they deserve.

Apr 21
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Planning considerations as you get older

By Committeeship, Estates, Power of Attorney, Wills

Estate Planning

If you have a family, it’s important to make sure that they are taken care of after your death. A will is one way to do this. A will allows you to specify who will inherit your property and other assets, including who should care for any minor children if both parents die.
You may also want to consider setting up a trust as part of your estate planning process. Trusts can be used in many different ways–for example, they can be set up so that an heir receives money from the trust only when he or she reaches a certain age (a “spendthrift” clause), which could help protect against financial abuse by others; or they might allow for some flexibility over how much money goes into each beneficiary’s hands at different stages in life (such as college tuition).
If someone else needs power over your finances but doesn’t want total control over them (for example, if you’re too ill or incapacitated), then naming him or her as power-of-attorney may be necessary; this person would then be able to make decisions about paying bills on behalf of another person until such time as he/she recovers enough mental capacity again. You can read more about that here: https://wolseleylaw.ca/wills-estates-and-elder-law/

Health Care Planning

Health care planning is one of the most important things you can do to ensure that your wishes are respected and carried out. By creating a health care directive and assigning a health care proxy, you can ensure that decisions about your medical care are made according to your wishes. If you have chosen not to create an advance directive or assign a proxy, then provincial law will determine what happens if you become incapacitated and unable to make those decisions yourself.
When it comes time for long-term care (LTC), there are several options available: home-based LTC services such as adult daycare centers; assisted living facilities; nursing homes; or continuing care retirement communities (CCRCs). Each option has its own benefits and drawbacks depending on how much assistance is needed from staff members at these facilities–and each comes with its own cost structure as well!

Financial Planning

As you age, it’s important to have a financial plan in place. This can include creating a budget and planning for retirement, as well as exploring financial assistance options that may be available.

Housing Arrangements

  • Senior Living
    If you’re an older adult, or if you know someone who is, it’s important to explore options for senior living. This can include independent living facilities or assisted living facilities. You may also want to consider moving in with family members or friends who live nearby.
  • Home Modifications
    As people age, they often need help with daily tasks such as bathing and dressing themselves. When this becomes too much for them alone–or when it becomes impossible for them alone–it’s time to make some changes in their home environment so that they can continue living safely on their own terms without needing constant assistance from others around them all day long every day throughout each week. Some examples include installing grab bars near toilets; widening doorways so they’re easier for wheelchair users; adding ramps outside entrances where snow piles up during winter months

Insurance Planning

  • Long-term care insurance
    Long-term care insurance can be a good option for people who are concerned about the cost of nursing home care. It’s important to evaluate your options carefully, though, and make sure that you understand what kinds of benefits each plan provides before buying one.
  • Health insurance options
    If you have employer-sponsored health insurance, it’s important to evaluate whether or not this coverage will continue after retirement. Long term drug coverage will typically end after retirement and so it may be important to consider what that coverage may look like, and what government Pharmacare limits and deductibles might be for you.

Tax Planning

Tax Planning
A tax professional can help you plan for retirement and ensure that you are taking advantage of all the deductions and credits available to you. Tax planning is also important for ensuring that your estate is properly structured to minimize taxes on death, which may include setting up trusts or other legal arrangements ahead of time.

End-of-Life Planning

When you’re faced with end-of-life planning, you may be thinking about what arrangements to make for your funeral and burial. You may also want to consider how much time you have left and what kind of care you would like in the event that your health deteriorates.
You can help ensure that these decisions are carried out in accordance with your wishes by creating an end-of-life plan. This includes deciding on funeral arrangements, such as whether or not there will be a public viewing or open casket service; who should attend; where it will take place; what music is played during services; whether or not there should be flowers sent by family members; etc.; creating a living will (also known as an advance directive) which outlines how medical treatment should proceed if one becomes incapacitated due to illness or injury. Even MAID is becoming more complex, with new rules set to take effect soon. Talking through those options can be important as well.

Caregiver Arrangements

If you’re caring for an elderly loved one, you may need to hire a caregiver. You can also look into finding support services in your area and making arrangements for respite care.
If you are caring for someone who has dementia or Alzheimer’s disease, it’s important to know what legal arrangements should be made before they lose their ability to make decisions on their own behalf.

Technology Planning

  • Assistive technologies: Assistive technology is any device or service that helps people with disabilities to do things they cannot do on their own. Examples include screen readers for people who are blind, text-to-speech software that converts written words into audio speech, and devices that allow people with mobility issues to use computers more easily.
  • Online resources: The Internet has become an indispensable tool for many older adults and their caregivers. It can help them find information about legal matters, health care services and other community resources; connect with others who share similar interests; stay in touch with family members who live far away; participate in online discussions about topics important to them (such as aging); learn new skills like using social media platforms like Facebook or Twitter; order groceries from home delivery services like Instacart or Peapod; manage finances using online banking tools such as Mint (which also tracks spending habits); find transportation options such as Uber/Lyft ridesharing services–and much more!

Conculsion

There are a number of considerations when we think about getting older and many of them go hand-in-hand. For example you tax planning and estate planning will often overlap. If you have questions about these, or if you know that there is some planning that you’d like to do, please reach out and schedule a chat with us.

Jan 26
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Don’t be afraid of a Power of Attorney

By Estates, Power of Attorney

A Power of Attorney Gives You the Control You Need

What is a Power of Attorney?

A power of attorney is a legal document that grants another person control of your finances, property, and medical decisions in the event that you are incapacitated. It allows you to appoint someone you trust to make important decisions for you and act in your best interest.

What Rights Will I Lose?

When you sign a power of attorney, you will not lose any of your rights or responsibilities. You are still in charge of your affairs and will retain all decision-making power. Your appointed person will only act when you are unable to do so or when you want them to.

Who Should I Appoint?

The person you appoint should be someone you trust to make decisions in your best interests. It is important to make sure they are aware of and understand your wishes, and that they are reliable and trustworthy.

We’re always happy to answer questions about estate plans and powers of attorney. Give us a call and we’ll chat.

person writing
Nov 20
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Power of Attorney or a Committeeship

By Committeeship, Power of Attorney, Wills

People often ask the question: “Do I need to get a power of attorney or a committeeship for my loved one?” While the two documents, and powers that they grant, look similar, there are many important differences, and often the situation that you are in will be what determines which one is needed.

 

A Power of Attorney is a document signed by a person that gives authority to another person to manage some or all of that person’s affairs (although it is important to note that it does not remove the ability of the person signing it to manage their own affairs – it just appoints a “helper”). They are often, but not always, used to guard against later-in-life inability to manage one’s affairs whether due to dementia, physical incapability, or simply because it’s easier to have a loved one take care of day-to-day tasks. They need to be made while a person is still competent to make decisions, and are typically drawn up by a lawyer because, unlike a will, powers of attorney can only be witnessed by people in certain professions, with “lawyer” being the most common one. They are often made at the same time as a Will, but unlike a Will, a power of attorney is only valid while the person who made it is still alive, where a Will is only in effect after a person dies.

 

A Committeeship has some similarities and some differences. Like a power of attorney, a committeeship gives another person the ability to manage some of a person’s affairs while that person is still alive. The main difference is that a committeeship is a judge-made court order and they are only issued after someone has lost the ability to manage their own affairs. Because of this, they require sworn affidavits from physicians that the person can’t manage their own affairs, as well as a court appearance before a judge (although typically there is no need for witnesses to be called). This makes committeeships significantly more expensive to obtain than making a power of attorney in the first place – often thousands of dollars – although if the person no longer has the mental capacity to make a power of attorney then it may be the only option for a family member to take control of the affairs of someone.

 

There are some other differences as well: Most often, when we draft a power of attorney, we give as many powers as possible to the person who will be taking on the powers. With a committeeship the powers that are granted are more limited, and sometimes additional orders are required. For example, most powers of attorney are drafted with the option to allow the family member to sell the house if the person can’t live in it anymore. Under a committeeship, the house can only be sold after review of the sale by a judge, resulting in a delay on the sale and increased costs for seeking that review. A power of attorney can also name anyone (over 18, mentally competent themselves, and no an undischarged bankrupt) whereas a committeeship can only be granted to a person who is a Manitoba resident.

 

In the end, it is often far easier on everyone involved to have a power of attorney in place before it is needed. With that said, if there isn’t one in place, it’s important to know that not all is lost and that a committeeship may be an option. Please feel free to talk to us if you have any questions, and let us know if there is any way that we can help with your committeeship or power of attorney questions.

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