Updating or Creating Wills and Personal Directives Covid 19

This week, I met with a couple who recently separated by video conference.  Nearing the conclusion of the meeting, I asked if there were any additional questions from either Party.    One of the spouses asked me a very important question, “what happens if one of us dies from Covid 19?”

That was a great question and my answer got me thinking about other people (including single, common law, married, separated, divorced, and widowed).  My answer, “You need to ensure that you protect yourselves and your loved ones including those that may not be in a position to care for themselves.  In Alberta, this is done through the creation or updating your will, personal directive, and enduring power of attorney.”

Frankly, most of us don’t want to think about either getting ill, or becoming incapacitated or death, however with the current global pandemic, now is a good time to get our affairs in order.

Wills – A will is a legal document that allows you to direct how your property will be distributed after your death, name your personal representative who will represent your estate after your death and carry out the wishes you have stated in your will, name a guardian for any children who are minors at the time of your death.

A properly prepared will allows you to direct where your property will go after your death. A will can help relieve stress from your family and loved ones during a time of grief, and can ensure your last wishes are followed.

A will that is out of date could create problems. Laws change, personal and financial circumstances change, and new financial and estate planning resources may become available. For instance, the wishes written down by a single person could change if they marry and have children. Acquiring or selling property could also change what you want to happen after your death.

Review your will on a regular basis and after major life events (such as marriage, separation, divorce, children, etc.) to make sure it still reflects your wishes.

Personal Directives & Enduring Power of Attorney – In addition to a will, it’s important to think about what you would want to happen if you were no longer able to make personal or financial decisions before you die. A Personal Directive and Enduring Power of Attorney let you choose someone to manage your personal and financial affairs if you are still alive but unable to make decisions (for example, due to an illness or injury).

Alberta does not have living wills but instead has personal directives. If you suffer a serious injury or illness, you may not be able to make decisions. This could be temporary or long term.

If you have a personal directive, the person or people you’ve picked to be your agent would have the legal authority to make personal decisions for you.

Personal directives can be registered with the Office of the Public Guardian and Trustee (OPGT) so healthcare providers can easily find your agent or agents if something happens to you.

We encourage everyone to take time to obtain or update their wills, personal directives and enduring power of attorney.  If you need assistance, we are here to help.  You can book a 10 minute no-obligation phone call with one of our expert team to get answers to your questions.  Stay safe.

Perhaps a better question would be — Why Not?

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and as cost effective as possible. The issues covered include but at not limited to the following:

  1. Division of Matrimonial Property (Assets/Liabilities)
  2. Child Support
  3. Spousal Support
  4. Parenting

In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediator’s job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision-making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

Mediation is flexible and confidential. It gives you and your spouse a way to settle the conflict between you in a way that helps you to work together as parents. This is extremely important if you have children and must interact with your ex-spouse after you are divorced. Mediation brings about communication between the couple, which can then be used when they must discuss issues in pertaining to the children. Lack of communication may have been one of the main reasons for their divorce. Mediation has the ability to help the couple learn to communicate again, if only for the sake of the children, and make their post-divorce relationship better than their married one.

A mediator is neutral and doesn’t “work” for either parent. That means the mediator can not give advice to either party. They must remain neutral no matter what the situation.

What the mediator can do, though, is assist the divorcing couple in formulating ideas that can eventually lead to agreements that will stand the test of time. That open and free exchange of information frees up both spouses to negotiate with each other in confidence. Because both spouses are working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.

Mediation is voluntary. It continues only for so long as all three of you – you, your spouse, and the mediator — want it to. Mediations can be conducted weekly, every two weeks, monthly or how ever often the couple wants them to be. This is their mediation and they decide everything in the process.

How long does divorce mediation take and what are the costs?

The length of mediation depends on what issues have been agreed to prior to mediation and those issues that need to be addressed during mediation. Also, the amount of time spent in mediation is contingent upon you and your spouse’s willingness to come to agreements that are equitable for both of you and your willingness to do what is in the best interests of your children. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. However, if you and your spouse are not able to discuss your divorce outside of mediation, it is strongly recommended that you avoid it at all costs. When couples try to work out issues on their own and it leads to arguments and “drawing lines in the sand”, it makes mediation more difficult and time-consuming.

On average, pre-decree divorce mediation can be completed in 5-8 hours. Again, how long it takes really depends on what if any communication there is between the divorcing couples and their level of animosity for each other. If either one of the spouses is unwilling to budge from their position on certain divorce issues, mediation may not be an option for them and they may have to litigate in court. Once this happens, communication is shut down and the fight begins.

It is estimated, the average mediated case costs $3000 and was settled in 90 days. In contrast, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce? You during mediation or lawyers and judges during a divorce in the courts? Why have people who know nothing about you tell you how you are going to live the rest of your life.

Also, divorce in the court system is in the public domain. Anybody can sit in court and hear the specifics of your divorce. On the other hand, mediation is confidential, private and conducted behind closed doors. In mediation, there are no lawyers putting up walls between you and your spouse. Mediation is about working together, doing things in the best interests of your children and focusing on being able to be parents for your children for years to come. Unfortunately, divorce in the court system is designed to put up that wall and limit communication, which inevitably leads to many post-divorce problems and many more hours and thousands of dollars in court.