Estates & Wills & Trusts

Discussing assets and debts with a lawyer

By Mia Clarke, Associate Editor

While it’s great to do one’s homework before meeting with a lawyer to discuss estate matters, it’s important to exercise caution when doing so, Winnipeg wills and estates lawyer Cynthia Hiebert-Simkin says in a recent Caregiving Matters podcast.

For example, when doing research online, Hiebert-Simkin, a partner with Tradition Law LLP, Estates and Trusts, says people should be aware that each province is governed by its own legislation — even some of the legal terms will vary between jurisdictions.

“I practise in Manitoba, so I’m familiar with the Manitoba legislation, and some of the legislation might be very similar. For example, the legislation on the preparation of wills is often similar, but they’ll have different twists, depending on where you live.”

Hiebert-Simkin also tells listeners that it’s very important to take a hard look at one’s assets and debts and be prepared for a significant number of questions when meeting with a lawyer.

She says the questions are intended to sort out what a person has and how they’d like those assets to be divided. The answers also help determine to whom various roles and responsibilities will be given — information that needs to be sorted out while the person is alive and capable of making those decisions.

“It’s a terrible thing to leave an executor with a bankrupt estate — where there are more debts than assets,” says Hiebert-Simkin. “That creates a lot of stress and tension in families when they realize that that’s the situation they’ve been left.”

The enduring power of attorney — the document that allows someone to manage someone’s affairs after the person is no longer able to do it themselves — must also be created while the person is of sound mind, she says.

“The person doing that needs to have a sense of what you own and how that is going to be available in order to deal with certain aspects of your care,” explains Hiebert-Simkin.

She says lawyers may also ask a series of questions to determine a person’s capacity to sign documents. The queries will vary depending on the client’s age. For example, says Hiebert-Simkin, the conversation with a client in his 40s will be much simpler than for one in his 70s.

“Two entirely different situations,” she says. “And asking questions about what somebody owns is part of the test that a lawyer will use when considering the capacity to make and sign documents.”

Hiebert-Simkin says it’s important to keep in mind that although memory can be frail at any age, it becomes more of a concern with older clients.

“One of the things, when dealing with older adults — especially if there is concern about any form of dementia ... is that there is a social awareness for many people who come in that they know how they are supposed to act. They can be very engaged, they can answer questions, they say it with complete authority, you believe them absolutely,” she says.

“But if you were to ask someone else in the family, ‘well is this actually the situation?’ you would find out that it was entirely not true.”

Hiebert-Simkin says experience helps her determine when she should be digging deeper.

“As a lawyer interviewing an older adult, we can’t necessarily rely on the fact that the person is so certain of their information because it, in fact, might not be true.”

To hear more of the podcast, click here.

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