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Be Careful What You Wish For

Posted in Health / Medical

What happens when someone changes his or her mind about medical care after preparing a power of attorney?  A recent article in the Law Times by Judy van Rhijn highlights some concerns surrounding this issue.

In Ontario, in most circumstances, doctors must obtain consent from a patient before administering treatment.  When the patient is not mentally capable of providing consent, medical practitioners must look to that person’s substitute decision-maker to make a choice on the incapable person’s behalf.  By preparing a power of attorney for personal care, an individual can appoint someone to be his or her substitute decision-maker and can provide written guidance as to what decisions should be made in different circumstances.

Ontario’s Health Care Consent Act, 1996 dictates that a substitute decision-maker is to make choices in accordance with the person’s wishes, if known to him or her and if expressed while the individual was capable and over the age of 16.  If not known, the decision is to be made in accordance with the incapable person’s best interests.

A power of attorney for personal care operates by naming an individual to act as substitute decision-maker, but also by recording in written form the grantor’s wishes.

The Act provides that wishes can be expressed in a power of attorney, but can also be expressed in writing in any other written form, orally, or in any other manner.  Subsection 5(3) of the Act sets out that later wishes, if expressed while capable, prevail over earlier wishes.

The difficulty, therefore, is what to do when the person has recorded their wishes in a power of attorney, but then subsequently advises a doctor differently.  The doctor may want to rely on wishes expressed to him or her, often out of context, rather than abide by the choice of the substitute decision-maker, who is legally responsible for giving or refusing consent once the person has lost consent.

As with many difficult problems, communication is the key.  This article reminds us that attorneys for personal care should continue to discuss wishes with the grantor over time.  It is important to understand the grantor’s wishes as they evolve and change with the circumstances.

Better communication between the legal professions and the medical professions is needed as well, so that each can understand their distinct roles in the process, as they continue to be clarified by the courts.  Ultimately, doctors will need to learn a little bit about the law in order to better serve their patients, and lawyers will need to learn a little bit about medical care in order to better help their clients plan for incapacity.

Josh Eisen

Intellectual Property – Why it’s Fashionable to Consider when Estate Planning.

Posted in Uncategorized

Much to the sadness of many celebrities, socialites, fashionistas and even politicians, world renowned fashion designer, Oscar de la Renta, passed away on Monday, October 20, 2014, from complications with cancer.  Mr. de la Renta was 82 and had been intermittently ill with cancer for close to eight years. Mr. de la Renta’s obituary, as published in the New York Times, can be found here.

Born in Santo Domingo, Dominican Republic, in 1932, Mr. de la Renta moved to Madrid at the age of 19 to study art.  Once there, Mr. de la Renta was swept away by the nightlife and lavish lifestyle.  Due to his new expensive tastes in clothing and entertainment, he ended up drawing clothes for newspapers and fashion houses to earn some extra money; however, what started out as a part-time job quickly led to a career in fashion design which would take him to Paris and ultimately New York.  Mr. de la Renta’s designs are known to be worn by celebrities, socialites, and first-ladies alike, and both he and his designs will be missed by many.

Whenever any artist passes away, whether a writer, musician, designer or other, it reminds those in the Estates world of the importance of considering one’s intellectual property when Estate planning.  Just like any other form of property, intellectual property, such as trademarks and copyright, can be bequeathed in one’s Will.  Where well-known and desired to be used by others, the ownership of intellectual property can be extremely lucrative.  For instance, licensing out the rights to use one’s intellectual property can generate significant income.

Additionally, the rights that a person can have in a deceased’s intellectual property can continue for a long time after the Testator’s death.  For instance, section 6 of the Copyright Act provides that the term of a copyright shall be “the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year”.  Similarly, pursuant to section 46 of the Trade-marks Act, a registered trademark can be renewed for up to 15 years after the original date of registration.  As such, the financial significance of one’s intellectual property should not be discounted when Estate planning.

According to the old adage, most artists only become famous after they’re dead.  While this certainly wasn’t the case for Mr. de la Renta, who likely gave great consideration to his intellectual property when Estate planning, perhaps more of us humble artists should do the same.  After all, you never know – your finger paintings could be the next big thing in 50 years.

Thank you for reading.

Andrea Buncic

End-of-life Wishes Should Be Communicated Early

Posted in Capacity, Elder Law, Power of Attorney

The controversial topic of life support and when to “pull the plug” is likely to ignite debate wherever it is raised. The issue involves aspects of morality, religion, science, and, of course, law. This complicated philosophical enquiry can make decisions very difficult to make, especially at a time when emotions are high.

Whether or not an individual should be taken off life support can promote disagreement among  doctor(s) or medical workers, on the one hand, and family members or friends on the other. In some cases, this is when a “living will” can come into play. In Canada, Powers of Attorney for Personal Care allow us to designate a person to make decisions on our behalf when it comes to decisions regarding our health and care.

These documents often also include clauses outlining what measures should or should not be taken at the end of life. Still, often some guidance from loved ones can be required in making a final decision. These end-of-life decisions are often difficult and many people are not adequately prepared to make them. Making decisions in place of another who is unable to communicate their wishes is a challenging task. Even with their wishes spelled out  in writing, family members and/or friends may disagree as to whether the time is right and the incapable person is ready to go.

Communicating your wishes to trusted confidantes and putting them in writing wherever possible gives some guidance to those around you when the time comes. However, often this is not top of mind, especially for those in good health.

Another important consideration regarding plans upon death includes whether you wish to become an organ donor and what kind of burial you elect. Ontario residents can easily become organ donors by registering online. This is a decision that cannot be made by an attorney for property because the authority of the attorney ends upon death. Burial and funeral wishes in a will may not be very effective as action often has to be undertaken by family and friends before minds are turned to the will. Instead, a directive can be made or wishes can be communicated before death.

For more discussion on Powers of Attorney and other related topics, see our blogs here, here and here and visit our Hull & Hull TV page.

Thank you for reading,

Suzana Popovic-Montag

Hull on Estates #393 – Law reform and small estates

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

Listen to Hull on Estates #393 – Law reform and small estates

Today on Hull on Estates, David M Smith and Joshua Eisen discuss potential legislative developments for easier administration of estates at the federal and provincial level. Here is a Questionnaire released by The Law Commission of Ontario for Ontarians dealing with the subject of small estates. Should you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on David M Smith.

Click here for more information on Joshua Eisen.

iPhone Wills: There’s No App for That

Posted in Uncategorized

I was recently at a cocktail reception when a young couple asked me about their “iPhone will”. The couple had recently taken their first trip out of the province without their young child and had intended to prepare a will in advance. However, life got in the way, and it was only when they were sitting in the airport that they remembered they had forgotten to prepare a will. Worried about their lack of succession planning, they pulled out their iPhone and drafted a basic document setting out their desires for their estate should anything happen on their trip.

Unfortunately for this young couple, this attempt at drafting a will was likely ineffective. The formalities of a valid will are set out in the Succession Law Reform Act, R.S.O. 1990 c. S.26. For a formal will to be valid, it must be in writing (s.3). Additionally, a will is not valid unless: (i) it is signed by the testator at the end of the document (or their representative); (ii) it is signed in the presence of two witnesses and (iii) the witnesses sign the will in the presence of the testator (s.4(1)).

Certain of these formalities are not necessary where a testator makes a “holograph will”. A holograph will is valid if it is made wholly by the testator’s handwriting and signature without formality and without the presence or signature of a witness (s.6). However, in this case the couple was unable to sign the will (even digitally) due to the limitations of the phone’s program.

We are not aware of any cases that have considered whether a digital signature can satisfy the signature requirements of the Succession Law Reform Act or whether digital “handwriting” can satisfy the holograph will requirements. It will be interesting to see what a Court will decide in a situation where a testator attempts to sign a will digitally.

In conclusion, while it would have been effective for this couple to quickly write (and sign) a holographic will on a napkin, their attempts were foiled by the limitations of their iPhone. While it will be necessary for the Courts of Canada to adapt to technological advancements, for now this is an area where pen and paper remains the safe choice.

Thank you for reading.

Andrea Buncic

Proposed Law Would Assist Estate Trustees

Posted in Executors and Trustees

Guelph’s MP, and former Estate lawyer, Frank Valeriote, recently tabled Bill C-247, the Service Canada Mandate Expansion Act (the “Bill”).  If enacted the Bill would require the Minister of Employment and Social Development to establish Service Canada as the single point of contact for the Government of Canada in respect of all matters relating to the death of a Canadian citizen or Canadian resident.

Under our current system, estate trustees are often required to contact a multitude of government departments upon the death of an individual. These departments can include (to name a few):

  • Service Ontario for Old Age Security and CPP Benefits, Employment Insurance and in relation to the Deceased’s Social Insurance Number Card;
  • The Canadian Revenue Agency in relation to the completing of the Deceased’s final tax returns;
  • Passport Canada if the Deceased had a valid passport at the time of death; and
  • The RCMP if the Deceased had firearms.

There is little if any communication between the various government departments and each generally has unique documentation and procedural requirements that must be deciphered and complied with by the estate trustee.

Valeriote indicates that “the creation of ‘one point of contact’ at Service Canada would bring efficiency to the system and would remove the guess work for survivors and estate administrators who may not be fully aware of the deceased’s obligations to the federal government.”

He goes on to state that the Bill “will reduce the possibilities of benefit overpayments and costs to the federal government to retrieve such expenditures… and avoid the possibility of requests arriving years later from the federal government demanding repayments or penalties”.

Under the proposed Bill, an estate trustee need only advise Service Canada of the death once. This one contact would trigger a notification to all relevant departments, who would then be required to advise the deceased’s estate trustee of the specific procedures and responsibilities applicable in relation to the cancellation of benefits, the return of identification documents and access to any survivor benefits.

A similar system has been successfully implemented in the United Kingdom called “Tell Us Once.” The process in the UK allows an estate representative to report a death to most government organizations with just one communication.

The Bill comes on the heels of the 2013 Fall Auditor General’s Report titled “Access to Online Services”. In Chapter 2 of this report, under ‘delivery of services to Canadians’ the Auditor General examined the current practices and procedures relating to death notifications and highlighted the lack of coordination and communication between the various departments.

Valeriote says “the current system is far too cumbersome for those who have lost their loved ones. Should the Bill be passed people will finally find some comfort in knowing they won’t be facing an endless labyrinth of frustration in wrapping up the affairs of their loved ones which sometimes leads to higher legal bills.”

The Bill passed its second reading in the House of Commons Oct. 8, 2014, and was referred to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities for further study.

If the Bill becomes law, the Minister of Employment and Social Development will have one year to establish Service Canada as our single point of contact.

Thank you for reading,

Ian Hull

Art & Taxes

Posted in Estate Planning, In the News

Almost everyone is required to pay some sort of tax.  As such, it seems logical to set up a method to allow as many people as possible to pay their taxes.  Where does it make more sense than in Italy, the land of Michelangelo and Raphael, to allow people to use art to pay tax.

A recent article indicates that Italian citizens are able to transfer cultural treasures in lieu of tax payments.  Apparent offerings include paintings, sculptures, historical works of art, donations of property that have an archaeological value, contemporary artworks, antique books, and villas.

Not only has a panel been created to assist in calculating the value of the offered works, but it seems that all taxes can be paid including income and inheritance tax.  Put rather succinctly, the Italian Minister of Culture and Tourism mentions that “…not only does it allow people to fulfill their tax obligations by selling works of art, on the other hand, [Italy] regains its historical and artistic assets”.

Apparently this procedure is already in place in Britain where recently, the family of Sir Winston Churchill offered 38 paintings actually painted by Churchill himself in lieu of inheritance tax.

When it comes to estate planning in Ontario, it is often suggested to have some liquidity in order to pay any estate administration tax owing (there being no inheritance tax on distributions in Ontario).  Otherwise, as was the case in Ireland, a beneficiary may be forced to sell real property in order to pay inheritance taxes owing.  However, by accepting art may limit the need to have liquid assets.

While I admit to not having watched an episode of Antiques Roadshow Canada recently, it is entirely possible that Ontario could one day adopt such a practice.  For all we know, art classes may advertise one day that paintings posthumously pay taxes.

Noah Weisberg

Hull on Estates #392 – Murder’s impact on the devolution of estates

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

Listen to Hull on Estates #392 – Murder’s impact on the definition of estates

Today on Hull on Estates, Paul Trudelle and Moira Visoiu discuss the issue of murder and how that impacts the devolution of estates. Should you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Paul Trudelle.

Click here for more information on Moira Visoiu.

Simplified Procedure for Small Estates…Continued

Posted in Uncategorized

On Monday, Ian Hull blogged about the application process for a Certificate of Appointment of Estate Trustee (formerly referred to as Probate) and when a probated Will is generally required.  Ian also discussed the fee incurred (also known as estate administration tax or death tax) and how it is calculated.  Lastly, Ian discussed the role that the Law Commission of Ontario is taking in reviewing this application process.

Currently, regardless of the size of an estate the application process is the same.  There is no differentiation between a large estate and a small estate.  Given that other provinces have already adopted a separate procedure for smaller estates, being Saskatchewan and Manitoba, the LCO is seeking feedback from the legal community as to whether Ontario should be adopting such a process.

As most of you reading this blog likely have some experience dealing with probate applications, whether it be positive or negative, it is important to voice your opinion in order to address areas for change, if needed.  As such, we encourage you to provide your feedback to the LCO so that it can be properly considered whether Ontario requires a change to its probate process.  There are at least three possible ways to contribute:

First, Ian’s blog included a hyperlink to the LCO consultation questionnaire.  The questionnaire is relatively straightforward and can easily be completed over a morning coffee.

Second, the LCO in conjunction with Hull & Hull LLP have arranged a focus group for November 4, 2014.  Call in access is available, and anyone interested in attending can contact Sue Gratton (Research Lawyer at the LCO) at (416) 650-8437 or myself at nweisberg@hullandhull.com.

Third, Sue Gratton can be contacted should you wish to participate further.  Perhaps you would like to arrange a focus group or assist in the distribution of the consultation questionnaire.

I encourage you all to participate!

Noah Weisberg

Estate Planning – More Than Just a Will

Posted in Estate Planning, Power of Attorney

Thanksgiving was an opportunity for many Canadians to reflect on the blessings in their life.  It may also have been a chance to reflect on how they wish to benefit loved ones in the future.

There are a surprising number of aging Canadians that do not think they have done enough when it comes to estate planning, according to recent survey discussed by CBC here.  After all, estate planning does not just consist of the execution of a Will.

Other documents that should be included in a proper estate plan are powers of attorney for personal care and for property.  Powers of Attorney allow for the appointment of someone to legally make decisions on your behalf.  Sometimes this appointmentis triggered by incapacity, and other times it becomes effective upon execution of the document.  Choosing an attorney is an important decision that requires consideration of factors such as trust, geography, and communication skills.  It is also important to decide whether you wish to appoint one or more attorneys for your personal care or property.  If you choose more than one, consider whether your attorneys will be able to act severally or only jointly with each other.  In either case, it’s important to choose attorneys that can communicate effectively and work together in your best interest.

If you have children that could be left behind before they reach the age of majority, it is important to choose a guardian for them (subject to a court appointment) as part of an estate plan.  Otherwise, as is the case when powers of attorney are not executed, someone else decides for you.

The management of a business is also an important consideration during estate planning. Specific instructions should be communicated so as to avoid surprises among family or business partners.

While it is not typical holiday dinner table talk, more and more advisors and practitioners are recommending that people talk to loved ones about their wishes.  A family meeting is a good way of addressing awkward topics, like money and assets, as well as managing expectations of the parties involved.

Estate plans also need to be updated incrementally.  This can be done on a regular schedule, but must also take into account when certain events take place that call for an updated plan.  A birth, marriage or separation are some examples of these events.

Like any other big decision, an estate plan can be done without the help of a professional but there are many available and it is certainly advisable that advice and assistance be sought.

Thank-you for reading,

Suzana Popovic-Montag

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