Our property is ours to give. This belief forms the foundation of the common law principle of testamentary freedom - that by the terms of your last will & testament, you may leave whatever you choose to whomever you choose. In Bermuda, the Wills Act 1988 enshrines this principle at clause 5(1): “...every person may dispose, by will executed in accordance with this Act, of all real estate and all personal estate owned by him at the time of his death.”. Nevertheless, this freedom was never seen as entirely divorced from the context of family obligation, as was eloquently expressed by Chief Justice Cockburn in his judgment in the case of Banks v Goodfellow (1870) 5 LR QB 549, 563-565:
While most people prefer to leave nothing in life to chance, there are many who don’t get around to making a Will, for one reason or another. Life is busy after all and planning for death is surely to tempt fate in the wrong direction. Those who are married often make the assumption that the surviving spouse will take everything, in all circumstances. Sadly, this is not the case.
The Seniors Law Reform Committee has made a series of recommendations to the Ministry of Health, Seniors and Environment for amendments to legislation which would better protect seniors from financial abuse. This growing problem is particularly unsettling in the family context, where powers of attorney, joint bank accounts and voluntary conveyances of real estate are used by younger generations to gain control over the assets of their elders. It often remains hidden, because its victims are both ashamed and afraid that, if they resist, they will be placed in residential care and risk abandonment and emotional abuse by the perpetrating family member.
For a diversity of reasons, many of us are unwilling to properly contemplate our own beliefs and preferences concerning the subject of end-of-life care. Some of us are young enough that we have no sense of our own mortality – we are invincible and have the advantage of a seemingly infinite time horizon to get serious about the serious stuff. Others of us are older and although we want to be responsible adults and save our families from the stress of making life and death decisions on our behalf, we also worry that we may be tempting fate by making plans. The same holds true for those of us suffering from chronic and/or terminal illness. At the end of life, whenever and however that may unfold, the best that we can hope to achieve is death with comfort and dignity, in whatever manner each of us conceives of that. There is quite possibly no more important issue about which to exercise self-determination. For this reason, for the purposes of enshrining our end of life preferences, so there may be no doubt of our wishes, everyone should have an “Advance Directive for Healthcare” or “Living Will”.
None of us likes to consider the possibility that we may one day find ourselves unable to manage our own affairs. It is a boon that we can expect to live longer, but longer life often involves a loss of independence, and the possibility of that loss of independence necessitates forward planning. It is essential to ensure that someone can take up your day to day responsibilities in the event that you lose physical or mental capacity and one of the simplest and most cost-effective tools available for these purposes is the Enduring Power of Attorney (“EPOA”).