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Hull on Estates #407 – Parson v. McGovern

Posted in Hull on Estates, Hull on Estates, PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Show Notes

Listen to Hull on Estates #407 – Parson v. McGovern

Today on Hull on Estates, Jonathon Kappy and Stuart Clark discuss the recent Parson v. McGovern decision and the circumstances under which a court may compel an Estate Trustee to make an interim distribution to the beneficiaries.

Should you have any questions, please email us at webmaster@hullandhull.com, or leave a comment on our blog page.

Click here for more information on Jonathon Kappy.

Click here for more information on Stuart Clark

Community Foundations

Posted in Charities, Estate Planning

I attended a very informative seminar this week hosted by our firm, and the presenters were Anne Brayley and Aneil Gokhale from the Toronto Foundation.  Through their talk, we learned more about our role as estates counsel in philanthropic giving, as well as about Community Foundations generally. 

The concept of Community Foundations came to Canada in the 1920s, and the enterprise is growing – there are currently almost 200 Community Foundations in Canada.  The mission of Community Foundations is one of sustainable long-term giving.  The workings include the pooling of capital to leverage impact, servicing the community through grants and leadership, and serving individuals and families through Donor Advised Funds.  

The Toronto Foundation was established in 1981.  It has about 500 Charitable Funds, over 375 million in assets, and annual grants made in the range of $7 to $10 million.  The Vital Signs Report released by the Toronto Foundation annually identifies the trends and issues affecting the quality of life in Toronto, and can be accessed here.  You will also find more than 250 organizations working on solutions on the issues affecting Toronto here.  

The ability for individuals and families to set up a Donor Advised Fund was particularly interesting, as it can give each of us more satisfaction and participation in our giving.  You can give to any Canadian qualified donee, the Community Foundation provides knowledge in the local community, there are fundraising websites, and the donor can be as public or as private as one wishes.  Under the umbrella of the Toronto Foundation, a Donor Advised Fund can be created with a contribution of $25,000 or more, the donor can choose any name for the Fund, many gift types are accepted and most gifts receive charitable tax receipts. 

This is a helpful discussion to explore with clients at a time when they appear to be more often seeking to understand options available to them to structure their philanthropic giving. 

Thanks for reading and have a great weekend!

Natalia Angelini

 

Reform of the Substitute Decisions Act (SDA)

Posted in Beneficiary Designations, Estate Planning, Power of Attorney

The SDA came into effect in 1995, and created significant change to Ontario’s consent and capacity laws.  This year the SDA celebrates its 20-year anniversary of governing planning for mental incapacity and substitute decision-making for incapable adults.   At the recent Law Society of Upper Canada course given on the topic of the Annotated Power of Attorney for Personal Care, Ian Hull spoke about the SDA, and he and his paper nicely reviewed events leading up to its creation, concerns that have arisen with its application, and where we are heading next.

Mr. Hull’s paper also discusses the Law Commission of Ontario’s (LCO) review of Ontario’s legislative framework relating to legal capacity, decision-making and guardianship, as well as the significant feedback given to the LCO’s discussion paper on the topic released in 2011.  The most notable feedback cited was in the form of a July 2013 submission from the Ontario Bar Association (OBA).

The OBA’s submission highlights a lack of clarity with respect to beneficiary designations, and suggests the insertion of a new subsection that would allow guardians and attorneys “to make, change or revoke a beneficiary designation” in limited circumstances, which could resolve, among other things, the following scenarios where this would be needed:

  • Where divorce proceedings were started before the grantor became incapable – while a divorce will revoke all gifts to an ex-spouse, the beneficiary designations will remain unaffected;
  • Transferring RRSPs, RRIFs or TFSAs between financial institutions – as the law now stands, an attorney cannot designate a beneficiary in this instance, even if he/she would be selecting the same beneficiary designation chosen at the previous institution; and
  • Transfer of an RRSP to a RRIF – upon attaining age 71, RRSPs must be converted to RRIFs, and as the law now stands an attorney cannot name a beneficiary for the newly created RRIF, even it the beneficiary would have been the same.

An interim report with the recommendations of the LCO is expected to be released this year.  We will keep you posted!

Thanks for reading and have a good day,

Natalia Angelini

No Monkeying Around Here!

Posted in General Interest, In the News, Pets

Our blog has covered the topic of pets on a number of occasions, most recently the extravagant tale of Bella Mia Bolasny, a pampered Maltese who is set to inherit from her wealthy owner, or “mother”, Rose Ann Bolasny.

There’s no question that pets become a part of the family, but is considering them children taking it too far? For one Indian couple, that is exactly what their pet monkey became. Brajesh Srivastava and his wife Shabista adopted Chunmun, in 2005 when he was less than a month old. Since then, he has grown up, “married”, and continues to live with the couple in their home in Raebareli, India. They treat him like a son, and even throw Chunmun and his “wife”, Bitti, a wedding anniversary party every year.

So what did the couple decide to do with their estate plan? Leave it all to Chunmun of course!

Their estate consists of a house, a plot of land and a bank account. The estate plan, however, also reflects the couple’s love for all monkeys, not just their own. The trust created for Chunmun will also be used to help other monkeys in distress.

We learned from the Toronto folklore story of Darwin (or the “Ikea Monkey”) that wild animals are not to be considered pets here in Ontario. In 2013, Justice Vallee of the Ontario Superior Court ruled that Darwin’s owner, Yasmin Nakhuda, lost ownership of him when he escaped from her car in December, 2012. Ms. Nakhuda has notably referred to herself as Darwin’s “mom”, and, according to more recent reports, not only still hopes he will be returned to her, but has also adopted other exotic primates.

For residents here in Ontario that legally own pets, such as cats and dogs, a trust like the one set up by Chunmun’s “parents”, is likely not the best option as it could be considered a “purpose trust”. Purpose trusts are trusts created for to fulfill a purpose, not to benefit a person and, if not for a charitable purpose, are often considered invalid. If you do have concern about the welfare of your pet when you’re gone, consider discussing your wishes with a trusted friend or family as part of an estate plan.

Thank you for reading,

Suzana Popovic-Montag

Response to Carter on End of Life Decisions

Posted in Ethical Issues, General Interest, Litigation, Uncategorized

A course by the Law Society of Upper Canada on February 19, 2015 on the topic of the Annotated Power of Attorney for Personal Care was particularly interesting given consideration of the pivotal decision of the Supreme Court of Canada in Carter v. Canada (Attorney General) 2015 SCC 5.  We blogged on the case here.

The Supreme Court of Canada gave the federal and provincial governments 12 months to implement legislation in response to the ruling.  Susan Woodley presented her paper on the issue, and suggested that any provisions dealing with wishes or instructions to direct physician-assisted death would need to specifically address the following further items:

1.Minimum age requirement to exercise a power of attorney be increased to 18 years.

  1. Minimum age requirement to express prior capable wishes be increased to 18 years.
  2. The test for capacity to provide end of life physician-assisted death be the “higher” threshold attached to capacity to make personal care decisions with a further requirement that “informed consent” as defined by the Health Care and Consent Act form part of the capacity assessment.
  3. End of life instructions be deemed treatment to which the Health Care and Consent Act applies.
  4. End of life wishes and instructions that direct physician-assisted death should be made in writing with corresponding requirements for a capacity assessment and documented “informed consent” at the date the instructions are made.
  5. Where such wishes are not made in writing then the attorney must proceed by application to the Court to obtain authority and provide evidence of the grantor’s prior capable wishes and instructions directing physician-assisted death which evidence must prove such wishes beyond a reasonable doubt.
  6. That the consideration regarding end of life physician-assisted death be limited to prior capable wishes or instructions and that “best interests” not be considered or entertained in any situation.
  7. That the indemnification provisions of the Substitute Decisions Act and the Health Care and Consent Act be amended to include attorneys for personal care and physicians in the case of physician-assisted deaths directed by attorneys for personal care.

It will be interesting to see if any of these helpful suggestions will be included in the new legislation.

Thanks for reading,

Natalia Angelini

Planning for Incapacity

Posted in Capacity, Estate Planning, Power of Attorney

According to the World Health Organization (the “WHO”), approximately 35.6 million people around the globe are currently living with dementia. Given the aging boomer population, the WHO estimates this number will double by 2030 and more than triple by 2050.

Yet, despite the increased prevalence of dementia, many people still fail to consider and/or adequately plan for incapacity.

While not a subject most people like to contemplate, it is important for you to consider who you would like to make financial and medical decisions for you in the event you are unable to do so for yourself.

Disputes between family members, each of whom believe themselves best suited to make decisions relating to an incapable individual are becoming increasingly common. Without a thoughtfully considered plan, your diminished capacity could become the source of tension and disagreement amongst those closest to you. Not only are such disputes counterproductive and costly, but they can have long-term damaging effects on relationships between your family members.

You can minimize the likelihood of such disputes by executing powers of attorney. Through such powers of attorney you can nominate an individual (individuals) who you know and trust to be your substitute decision-maker(s) while you have full capacity to do so.

There are two specific types of powers of attorney relevant to dementia:

(1) Continuing Power of Attorney for Property (“CPOA”) – which will give the individual (or individuals) appointed the right to do anything with respect to your property that you could do if capable (except make a Will).

Part I of the Substitute Decisions Act sets out the law relating to the CPOA.

(2) Power of Attorney for Personal Care (“POAPC”) – which will authorize the individual (or individuals) appointed to make decisions regarding your health and personal care.

Part II of the Substitute Decisions Act sets out the law relating to the POAPC.

A detailed fact sheet published by the Office of the Public Guardian and Trustee (the “PGT”), which provides further information about both the CPOA and POAPC, can be accessed here.

In the event you become incapable without having executed a CPOA or POAPC, a guardian must be appointed to make such decisions on your behalf. In most cases the PGT will be appointed as statutory guardian by operation of law. In the event your spouse, partner, children and/or relatives wish to be appointed as your guardian instead of the PGT, they may be required to bring a court application authorizing their appointment.

Accordingly, without a plan in place, your diminished capacity could become a costly and time consuming issue for your loved ones to navigate, and a potential source tension between your family members.

Having powers of attorney prepared does not take long and it is relatively inexpensive, certainly less expensive than the emotional cost of a dispute between family members or the financial cost of having to bring a guardianship application.

Thank you for reading,

Ian Hull

First, Second and Third Cousins

Posted in Uncategorized

Yesterday I blogged about the phrase “my cousin once/twice/three times removed.” Today, I want to talk about the other way to describe the relationship between cousins – as first, second, third and so on.

When most people refer to someone as their cousin, they are usually referring to a first cousin – the child of one of their parent’s siblings.

So for example, if Anna’s aunt has a daughter named Brenda, then Brenda is Anna’s first cousin. The relationship is also sometimes described in connection to mutual grandparents. In this case, Anna and Brenda are first cousins because they are non-siblings who share a set of grandparents.

If Anna has a son, Chris, and Brenda has a son, Dave, then Chris and Dave are second cousins. In other words, they are second cousins because they are non-first cousins who share great grandparents.

If Chris has a daughter, Esther, and Dave has a daughter, Francine, then Esther and Francine are third cousins. They are non-second cousins who share great-great grandparents.

If you combine that with the discussion from yesterday’s blog about the term cousin (once/twice/three times) removed, (and perhaps sketch out a diagram) then you will see that Anna and Dave are first cousins, once removed; Brenda and Esther are first cousins, twice removed; and Chris and Francine are second cousins, once removed.

I tried mapping out my own family tree and realized that my mother has been incorrectly referring to her first cousin, once removed as her “second cousin” for as long as I’ve know him. Try it out for yourself, it’s actually pretty fun.

Have a great weekend!
Moira Visoiu

Hull on Estates #406 – Restitution for the Elderly Client

Posted in Hull on Estates, Hull on Estates, PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Show Notes

Listen to Hull on Estates #406 – Restitution for the Elderly Client

Today on Hull on Estates, Moira Visoiu and Paul Trudelle discuss an article presented at the OBA entitled Restitution for the Elderly Client, which looks at ways in which the law of Restitution, and the principle of unjust enrichment, can be particularly helpful for elderly clients who seek to recover assets that were transferred inadvertently.

Should you have any questions, please email us at webmaster@hullandhull.com, or leave a comment on our blog page.

Click here for more information on Moira Visoiu.

Click here for more information on Paul Trudelle.

My Cousin Once/Twice/Thrice Removed

Posted in Beneficiary Designations, Estate Planning, General Interest

In estate litigation we often have to explain to the court, in detail, the relationship between different family members. When a client says that a person is their brother or mother, that is usually pretty straightforward.

One of the most confusing terms used to describe a familial relationship is the word “cousin”. We use the word to describe, obviously, our relationship to the children of our aunts and uncles (our true cousins). However, sometimes people also say that someone is their “second cousin twice removed”. That can make anyone quite confused about what the specific family tree should look like.

In my quest for some clarity, I came across a helpful site. It explains that if someone is your first cousin (so picture your ‘regular’ cousin) then his or her child would be your “first cousin once removed.” The term once or twice removed always means one or more generation levels different from you.

All of your regular cousins (and some can be called first, second, third etc. but I will discuss that aspect tomorrow) are at the same generation level as yourself. Those at different generational levels are referred to as “removed.”

Stay tuned for tomorrow’s blog on First, Second and Third Cousins!

Moira Visoiu

Who Should Manage Your Facebook Account When You Die?

Posted in Estate Planning, New Media Observations

The online social media giant Facebook has taken steps to respond to the concerns about one’s personal account management upon death. Up until recently, the accounts of members that passed away were either “memorialized” or entrance into the accounts were locked.

On Thursday, February 12, 2015, Facebook introduced a feature entitled “legacy contact” that allows a user to designate another person to manage parts of their account after they die. The member is also given the opportunity to simply have their account deleted altogether after death.

The following features can be utilized by legacy contacts:

  • responding to incoming friend requests
  • updating the profile and header image
  • downloading an archive of a deceased member’s photos

Legacy contacts, however, are not able to view private messages.

The new setting is presently only available to residents in the United States but eventually will be introduced in other countries. Currently, our Security Settings on Facebook in Canada allow members to designate 3-5 friends as “trusted contacts” that can assist if members have trouble accessing our accounts.

The new ‘legacy contact’ setting could become a helpful tool for people planning for the future. However, it is only one aspect of digital estate planning. Facebook is only one social media site, and many people are members of at least 2 or 3. Some tips on how to address modern digital accounts and assets can be found here, here and here.

Thank you for reading,

Suzana Popovic-Montag

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