I have to admit I love the New Year. It feels to me like a fresh start, and it motivates me to start taking care of some of those things that have been taking up space in my head; my mental “to do” list. In January I clean out closets, make appointments for medical checkups I’ve been putting off, and just generally get organized. Doing this makes me feel positive about the year ahead, and starts me off on the right foot.
I can’t be the only one who feels this way, because at our firm we see many clients in January who book to have their Wills done or updated or make an intake to talk about starting the divorce process after having been separated from their spouse for some time.
So here are a few legal issues that we see clients book to take care of. Are any of these on your “to do” list?
Wills: If you own stuff or have children you need a Will. Your Will allows you to appoint someone who will wind up your estate if you die and appoints someone to care for your minor children. No one wants to think about dying, especially appointing someone to care for their children in the event that they have died. But death is a reality of life, and if you don’t have a Will you are missing the opportunity to save your estate money and to control who gets your stuff and cares for your children.
Divorce: Whether you and your spouse have negotiated and signed a separation agreement or you are just estranged there are benefits to finalizing the divorce process. Even if you have a separation agreement, you are considered legally married until you divorce. If you decide to remarry you need your divorce to be finalized first, and it can sometimes take many months, even years, to finalize a divorce. So don’t book your Caribbean wedding and start your divorce at the same time, hoping it will be finalized in time. It’s best to start the process before you make wedding plans.
Incorporation: Are you a small business owner? Do you operate as a sole proprietor? If so now might be the time to decide whether it makes sense to incorporate your company. Incorporation involves creating a business that is treated in law as a separate legal entity from you. As a result in many cases you save money in income tax and are also protected against liability if your business causes one of your customers to suffer a loss. Talk to your accountant to see if this process will benefit you, and if so, they will instruct your lawyer on how to set up your new company.
Planning a Trip: Are you planning a trip? Planning to take a child with you but not both of their parents? If you intend to travel outside of Canada with a minor child and both of the child’s parents won’t be coming (whether it’s your child or a friend) the non- travelling parents need to complete a trip consent form authorizing you to take the child. This form has to be sworn by a notary public which our lawyers are.
Power of Attorney: Many people mistakenly believe that if they have a Will and they have a stroke, for example, and can no longer manage their affairs that their Executor can step in and manage their affairs for them. But this is not the case. Your Will is activated by your death. In Nova Scotia individuals are deemed to be competent unless a court orders otherwise. Therefore if you were living but unable to manage your affairs your family would have to make a court application asking that someone be appointed as your legal guardian. This process is expensive and the court decides who will manage your affairs, not you. To avoid this the law allows you to draft a Power of Attorney in advance where you appoint someone who can manage your financial affairs for you if required in the future. This avoids time and complication but also allows you to choose who you would want in this role.
I think sometimes people avoid doing these things because of cost. But the reality is that the cost of not having a Power of Attorney if you need it will far outweigh the cost of having the document prepared. I don’t like having to pay my homeowner’s insurance every year, but I would be thrilled to have it if my roof blew off. If you work with your lawyer and consider different scenarios these document should be durable through many life scenarios.