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When you might need an estate litigator: Powers of attorney and personal directives

Estate planning is essential, whether you’re setting up your first will or helping elderly parents with their plans

Photo by Karolina Kaboompics on Pexels
Photo by Karolina Kaboompics on Pexels

By: Trevor McDonald and Karim Ismail

Karim and Trevor are thought leaders in Digital Journal’s Insight Forum (become a member).


Estate planning is essential, whether you’re setting up your first will or helping elderly parents with their plans. It’s all about making sure wishes are respected and assets are distributed smoothly. This process includes creating wills, trusts, and other legal documents to spell out your intentions. 

However, sometimes disputes arise — like contested wills, disagreements among beneficiaries, or allegations of undue influence — and this is where estate litigation comes into play. Understanding both estate planning and litigation can be useful for protecting your wealth and legacy.

The role of an estate litigator

Estate litigators do more than just resolve property disputes after someone’s death. They also provide various services to help prevent issues before they arise. One key area where they can be particularly helpful is with Powers of Attorney and Personal Directives. These legal tools can be vital for managing one’s affairs if they become unable to do so themselves, and estate litigators can assist in creating these documents, ensuring they comply with all statutory and other legal requirements, and are tailored to your specific needs.

Powers of Attorney and Personal Directives explained

Power of Attorney

  • Enduring Power of Attorney: This legal document lets someone else (the Attorney) handle your financial decisions and asset management while you (the Donor) are still alive.
    • Governed by the Powers of Attorney Act.
    • Can start immediately upon signing, on a specified date, or only when the Donor loses mental capacity.
    • Must be completed when the Donor is still capable of making their own decisions.
    • Can be revoked by events like the death of the Donor or Attorney, a court cancellation, or the Donor’s revocation (if they still have capacity).

An Attorney often has broad powers to deal with the Donor’s property and, unfortunately, sometimes that power is abused. If you feel that an Attorney is acting beyond his or her scope of authority, or taking personal benefits from the Donor’s estate, you should contact an estate litigator.

Personal Directive

  • Personal Directive: This legal document allows someone else to make non-financial personal decisions (like healthcare, housing, or legal matters) if you become unable to do so yourself.
    • Governed by the Personal Directives Act and Regulation.
    • Generally only takes effect when you lose capacity, typically determined through a capacity assessment and a Declaration of Incapacity.
    • If you regain capacity, you can take back control of your decisions.

Guardianship and trusteeship applications

Sometimes, a family member, friend, or other interested party may need to ask the court to declare someone incapable of managing their personal or financial affairs. In such cases, based on medical evidence, the court can appoint a guardian or trustee on an interim or permanent basis. An estate litigator can help navigate this process and ensure that the appropriate protections are in place.

Conclusion

Estate planning and litigation can be complex and sensitive, requiring skilled professionals to guide you. Whether you need to draft a will, an enduring power of attorney, or a personal directive, or if you need to challenge or defend an estate claim, estate litigators are there to help. They can protect your rights, interests, and legacy, ensuring you or your loved one’s wishes are respected and fulfilled.

To learn more about when you might need an estate litigator, check out our other articles about navigating probate, wills and more. 

If you have any questions or concerns about your estate planning or litigation needs, reach out to our team at BD&P to learn more, or complete the form below and BD&P will be in touch.

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BD&P is a full-service boutique law firm headquartered in Calgary, Canada. Their approximately 120 lawyers are bright, deeply talented legal minds who work on a broad spectrum of corporate and litigation matters, sitting across the table from national and international firms. Their clients live a variety of sectors, including energy, renewables, agribusiness, technology and life sciences. They are not just legal advisors, They are true partners. They've been called unconventional, and they think that makes them better partners to their clients for now — and for the future. BD&P includes members of Digital Journal's Insight Forum.

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