Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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Palliative care is a specialized kind of health care for people living with life-threatening illness, usually in the advanced stages. The foremost goal of palliative care is to achieve the highest quality of life (for the patient and their family) in its end stages. This comfort care is multidisciplinary, should be highly individualized, and ideally incorporates best practices in the following aspects of end-of-life care:

· Pain management: Commonly viewed as the single most important aspect of palliative care, it is also one of the most challenging. The majority of palliative analgesic drugs have sedating effects that can undesirably impact the patient’s lucidity and mental functioning. However, when terminally ill and conscious patients are experiencing intolerable symptoms that are not relieved with expert palliative care, then implementation of palliative sedation, with the intent of inducing unconsciousness, can be considered with the patient’s (or substitute decision maker’s) consent.

· Symptom management: Distressing symptoms other than pain that are aggressively managed include gastrointestinal symptoms, respiratory symptoms, insomnia, confusion and agitation.

· Psychosocial support: An effective palliative care model places paramount importance on the respect of the patient as an individual; one who deserves support, sensitivity, compassion, the preservation of their integrity and dignity, together with consideration of their spiritual and cultural values.

· Caregiver support: Palliative care, if it is to be approached holistically, includes the patient’s support network. Mirroring the patient, friends and family may also be experiencing a loss of control, fear, anger and anxiety, all of which can be exacerbated if they have been, or continue to be, actively involved in a caregiving role.

The patient best defines the quality of their own life and should therefore actively participate in directing the course of their care.

Jennifer Hartman, Guest Blogger
 

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As, no doubt, everyone is aware, Wednesday was National Dog Day in the United States.  In Atlanta, they celebrated the day with a special groundbreaking ceremony to mark the beginning of the construction of the latest addition to the Deceased Pet Care family. 

For those who do not know, Deceased Pet Care operates funeral homes and crematories with the mission being to allow people to “celebrate, honour, remember, and cherish” their deceased pets. 

Operating out of Georgia, Deceased Pet Care offers pet funeral home ceremonies, cremations, and the opportunity for the pet to be buried in one of the pet cemeteries the company owns.  It also offers various funeral “accessories”, such as caskets and grave markers.  For those who want to avoid the stress of grieving a pet while trying to plan the funeral, the company offers “pre-need planning” for those who wish to plan in advance. 

The extent of the services the company offers is really quite impressive and its website is easily as sophisticated, if not more so, than many of the more traditional funeral homes (i.e. those who offer services for dead people).

Although it might seem like the emphasis on pets (either through commemorating them or for providing for them in the estate planning process) is relatively recent, Deceased Pet Care has obviously been well ahead of the curve – it is a family run business which has been operating for thirty five years. 

And this year, it surely should be proud – that funeral home they’ve just broken ground on in Atlanta will be the largest of its kind in the United States.

Have a great weekend!

Megan F. Connolly 

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The recent decision in TD Waterhouse Canada Inc. (TD Waterhouse Investment Advice) v. Little caught my eye earlier this week.  The case did not involve an estate dispute.  Rather, it was an action brought by TD Waterhouse seeking repayment of loans it had made to an employee it later terminated.  

However, the facts surrounding the employee’s dismissal were interesting to me.  The employee had been an investment advisor for TD Waterhouse.  At the time he accepted his offer of employment he agreed to TD Waterhouse’s standard employment terms, including those set out in its Code of Conduct and Ethics.  

In part, the code of conduct prohibited employees from accepting gifts from clients, accepting an appointment as an executor under a client’s will, or holding a power of attorney over a client’s financial affairs.   

Sometime after his work with TD Waterhouse began, the advisor accepted a gift of $500,000.00 from a client , a ninety three year old widow with failing health.  There were insufficient funds in her account to clear the cheque, so the advisor proceeded to start liquidating the client’s securities and transferring the proceeds to her savings account.  He then deposited the cheque to his own account.  However, internal compliance caught on to what was going on before the cheque could clear.  

In its investigation into the situation, TD Waterhouse learned that the client had also granted a power of attorney for property in favour of the advisor and had named him as executor in his will.  The advisor was then filed by TD Waterhouse on the basis that, at a minimum, he had acted in breach of the code of ethics but that the bank had determined that his actions had been motivated by the desire for personal gain at the client’s expense.  

The decision itself involves the bank’s motion for summary judgment on its action demanding repayment of outstanding loans.  Nevertheless, it provides an illuminating – and scary – look at the risk of exploitation the elderly can face, even by those who are supposed to help protect their assets.  

Have a great day,

Megan F. Connolly    

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The British Ministry of Defence is in some hot water after apparently losing some of the last will and testaments of soldiers that were killed while deployed in Afghanistan.

Despite a “frantic investigation” by the ministry, the wills of at least four marines are still missing.  It is suspected that when other branches of the military are included, the number is in fact a lot higher.

In the UK, before a tour of duty in a war zone, the soldier is asked to provide the ministry with the names of the soldier’s next of kin, a last will of testament, the soldier’s funeral wishes, and a photo to be released in the event of the soldier’s death, all of which is lodged with a ministry handling centre.

Unsurprisingly, the lost wills have had devastating consequences for family members involved. After the envelope of one deceased soldier was lost, his fiancée was told that she couldn't walk with his coffin at his military funeral because she could not prove he had listed her as his next of kin. The picture the soldier had selected to be shown in the case of his death, was also lost, resulting in a different photo being displayed.  Eventually, the envelope of information turned up in a government drawer somewhere.

The fiancée of another fallen soldier alleges that shortly before his deployment, he wrote a will leaving her his share in a house they both owned as well as the proceeds of an insurance policy so she could cover the mortgage.  After his death, it was revealed that the only will the Ministry of Defence had was a previous will in which the soldier left everything to his sister.  Currently the fiancée and the soldier’s family involved in a "bitter row" over who is the rightful beneficiary of the estate.

If you’re interested in learning more about how to overcome the difficulties of lost will, then check out the recent podcast by Ian Hull and Jordan Atin on the topic.

Have a great day!

Megan F. Connolly 

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Listen to: Discussing Your Estate Plans - Hull on Estates #177

This week on Hull on Estates, Sharon Davis and Jordan Atin talk about the importance of discussing your estate plans with your family before you pass away . They relate this to a recent article that Jordan Atin wrote on Michael Jackson’s Will.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Sharon Davis - Click here for more information on Sharon Davis.

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Listen to: Lost Wills - Hull on Estates and Succession Planning #178

This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin discuss the difficulties of losing your Will and how to overcome them.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

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Walter Cronkite’s last will and testament has been revealed – and he left his girlfriend out in the cold. 

Cronkite, the legendary newsman perhaps best known for anchoring the CBS Evening News for almost 20 years, dated Joanna Simon, sister to singer Carly Simon, for the four years prior to his death.  However, it appears that he did not provide for her in his will. 

Instead, he divided his estate amongst his children and some former colleagues from CBS.  His alma mater, the University of Texas, is to receive certain personal effects relating to his broadcast career (incidentally, U of T has a nice video tribute to him on its website). 

Cronkite’s reason for not leaving his girlfriend anything was apparently because he had provided for her well in his lifetime.  In addition, a motivating factor appeared to be that he did not want to share his estate with his girlfriend out of respect for his deceased wife. 

No word on whether Cronkite’s girlfriend intends to advance any claims against his estate.  His  will was filed with the surrogate court in Manhattan and any claim she had would be governed by the relevant law in that jurisdiction. 

Had Cronkite died resident in Ontario, his girlfriend could potentially have sought dependant support under the Succession Law Reform Act.  Part V of the SLRA provides that if a deceased does not in his will provide sufficient support for a dependant (which includes a common law spouse) who is in need of and entitled to support then that dependant is entitled to dependant’s relief. 

Have a great day,

Megan F. Connolly  

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Listen to: Vacation Preparation - Hull on Estate and Succession Planning #177

This week on Hull on Estate and Succession Planning, Ian Hull and Jordan Atin discuss the importance of having your Will in order before going on vacation.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull  - Click here for more information on Ian Hull.

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Traumatic Brain Injury (TBI) is defined as sudden damage to the brain, occurring after birth, as a result of an external force (e.g. crash, assault, fall). The effects of TBI are determined by the location and severity of the injury, as well as the age and general health of the individual. Thus, TBI results in a very broad spectrum of disabilities, and may include problems with cognition, communication, sensory processing, behaviour and mental health. Severe TBI can result in a long-term unresponsive state such as coma. [Note: ‘Acquired Brain Injury’ is the larger, umbrella term which includes not only TBI, but also brain injury caused by a non-traumatic event such as a stroke or an aneurysm].

TBI statistics are staggering:

· 11,000 people die each year in Canada as a result of a Traumatic Brain Injury (over 4,000 in Ontario alone). Annually, another 6,000 Canadians will become permanently disabled after a TBI.
· Most TBIs in Canada are caused by motor vehicle crashes, sports related injuries, falls and bike accidents. In the United States, firearms rank as the second-leading cause of TBI.
· The age group with the highest rates of TBI are the 15-24 year olds. TBI risk also spikes after the age of 65. TBI is the leading cause of disability among children and is the third most common injury leading to hospitalization in older adults.
· TBI affects men at twice the rate of females. Men are also more likely to suffer severe injuries, and thus incur a higher mortality rate.

TBI prevention has evolved tremendously over the years to address issues such as seatbelt use, driving under the influence, helmet use, pedestrian safety, shaken baby syndrome and elderly falls prevention.
 

Jennifer Hartman, Guest Blogger

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David M. Sherman's Basic Tax and GST Guide for Lawyers 2008-2009 (Toronto: Carswell, 2008) is a helpful resource for lawyers not specializing in tax law.  The section on Wills and Estates (chapter 7) is concise, easy to follow, and the annotations are precise.  The style is rule-driven and not overly burdened with qualifications (these appear in the Preface); it is not cluttered with lengthy paragraphs or run-on sentences. 

One criterion I use to rate general texts is how helpful or interesting they are to me in areas outside my field.  This book scores well on that basis.   See, for instance, the section on deductibility of legal fees or health club memberships. 

This text is highly recommended.

And my Friday blogs are always short for you.

Enjoy the weekend,

Chris Graham

Chris M.B. Graham - Click here for more information on Chris Graham.

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Q:  How is a will actually revoked, other than by marriage or making a new will?

A:   See section 15 of Ontario's Succession Law Reform Act ("SLRA"), which enumerates revocation events (marriage depending on the will, making a new will, a proper written revocation, and destruction of the will).  See also the later provisions in the SLRA, especially ss. 16-19.

Revocation by destruction (s. 15(d) of the SLRA) is perhaps the most legally interesting revocation technique.  To revoke by destruction, the testator must have the intention to revoke the will (animo revocandi), and perform an act of destruction qualifying under section 15(d).  Both requirements must be present: acts without intent are not sufficient, nor are intentions without action (Cheese v. Lovejoy (1877), 2 P.D. 251 at 253).  The testator must not be of unsound mind (which extends to scenarios other than just general lack of testamentary capacity, so for instance, a very drunk testator might not have requisite capacity to revoke the will). 

How is the act requirement met?  What amounts to a "burning, tearing or otherwise destroying" of the will?  The caselaw is rich in unique fact scenarios on this issue, but clearly the entire will need not be comprehensively annihilated.  For instance, in Hobbs v. Knight (1838), 1 Curt 768 at 780-781, a signature that was obliterated so that it could no longer be read would amount to a revocation of the will, because the signature is an essential part of the will.   

The caselaw, much of which predates section 15 and the related sections in the SLRA (and the entire SLRA), is still very much relevant.  For a detailed discussion of revocation of wills in light of the SLRA, see Chapter 4 of  MacDonell, Sheard and Hull on Probate Practice, 4th ed. (Carswell: Toronto, 1996), edited by Ian Hull and Rodney Hull.

Have a great day,

Chris Graham

Chris M.B. Graham - Click here for more information on Chris Graham.

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Listen to: Admissible Evidence - Hull on Estates #176

This week on Hull on Estates, Rick Bickhram and Megan Connolly discuss what types of evidence are admissible throughout the interpretation of a Will.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Decore Estate, 2009 ABQB 440

Rick Bickhram - Click here for more information on Rick Bickhram.

Megan Connolly - Click here for more information on Megan Connolly.

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Part V of Ontario's Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased.  Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA. 

The recent case of Simson v. De Bartolo 2009 CanLII 38493 (ON S.C.) interprets section 72(1) and applies Cummings v. Cummings 2004 CanLII 9339 (ON C.A.), the Court of Appeals decision holding that support awards are subject to moral considerations.  One issue following Cummings has been whether moral considerations justify a support award in and of themselves, or whether moral considerations are merely relevant to quantum of support following a determination that a support award is appropriate.

The applicant in Simson v. De Bartolo was litigation guardian for her child, born out of wedlock to the deceased and the actual support claimant.  When the applicant told the deceased's wife about their relationship and the child, the deceased transferred these properties to his wife (from joint ownership) and made a will disinheriting the child.  Later, the deceased died virtually penniless.  At issue in a motion was whether properties transferred by the deceased to his wife 10 years prior to his death could be deemed part of the deceased's estate under any enumerated grounds in section 72(1). 

Justice Lemon held that these assets could not be "clawed back" under s. 72(1).  Most particularly, a transfer of land to another party in the absence of an express written trust instrument does not fall within section 72(1)(e).  Of course, the transfer may still be impressed with a trust, as Justice Lemon pointed out, and if such trust pulls the asset into the estate, the SLRA provides for protection of the dependant pursuant to section 67.  Moral considerations were relevant in determining quantum of support, but not whether an asset forms part of the estate.

The facts in Simson v. De Bartolo appear to have precluded the court from addressing the Cummings question, at least in the motion being heard.  However, section 72 has been clarified.

Enjoy your day,

Chris Graham

Chris M.B. Graham - Click here for more information on Chris Graham.

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Wang Yung-Ching died at the age of 91 in New Jersey without a will (so far).   Of course, New Jersey has intestacy laws.  But according to the New Jersey's Star-Ledger, Mr. Wang owned a multi-national conglomerate worth around US$7 billion (the basic American Dream story: immigrant founds Formosa Plastics)... with at least nine children... by at least two different women in long-term relationships, none of whom was Mr. Wang's surviving married wife of more than 70 years... and one son has filed court documents alleging additional assets transferred by 2 half-sisters and a cousin, including $7.5 billion in Cayman Islands trusts and $1 billion to a bank in Switzerland ... and while Mr. Wang's corporate headquarters were in New Jersey, he also held approximately $1.7 billion in cash, stocks and real property in Taiwan... and a potential fourth spouse has emerged in Taiwan, with 3 more purported children.  

Mr. Wang's eldest son, Winston Wong (same surname, just different spelling), has applied to be appointed as the estate administrator in New Jersey.  According to an Associated Press report, last week a judge adjourned a motion made by one of Mr. Wang's daughters to dismiss Winston Wong's application on the grounds New Jersey was not the proper jurisdiction. 

Winston Wong also has been granted powers of attorney by Mr. Wang's wife, and he is applying or petitioning to be appointed her guardian (the reports go no further on this issue).  This is being contested by some other siblings.  The guardianship issue is less hashed out in the reports but with Mr. Wang's wife entitled to around 50% of her deceased's husband's estate if New Jersey's intestacy laws apply, what are the odds of that changing?   

There's enough money at stake to ensure every possible issue (or non-issue) gets litigated, across the globe. 

Have a great day.

Chris Graham

Chris M. B. Graham - Click here for more information on Chris Graham.

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While employed in management in the assisted living field, I was tasked with the facilitation and implementation of the personal care decisions of my residents. Where the resident was capable, they of course directed their own personal care, including scoping out their vision for advance directives, should the future need arise for these to be considered. Some residents, however, were no longer capable of making their own personal care decisions and the legal responsibility for doing so was passed to another party by a previously conceived Power of Attorney for Personal Care (POAPC).

While simple in concept, complications emerged when more than one person had been appointed under the POAPC. As an example, one resident had appointed all five of her children to make personal care decisions in the event of her incapacity. Well-intentioned, no doubt, as I imagined that she had done so in order to ‘keep the peace’ amongst the five adult siblings. In practical terms, however, the children spanned three countries and nine timezones and an equal breadth of opinion regarding how their mother’s care plan was to evolve, especially as her health declined. Attempting to reach consensus about any facets of her personal care was onerous and time-intense, and understandably emotional for the family. Factors such as the sibling’s interpersonal relationships (including where they felt they fell within the family pecking order), their own beliefs and values regarding end-of-life medical intervention, as well as the ‘baggage’ they each carried regarding their relationship with their mother, impacted, if not directed, their decision-making.

If one feels it both necessary and appropriate to appoint multiple Attorneys under a POAPC, prudence dictates that a prior detailed discussion, including written documentation, be undertaken to ensure that one’s wishes have been effectively communicated and understood.

Jennifer Hartman, Guest Blogger

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An article from mental_floss magazine has showcased ten things a body can do after death. My particular favourites are:

1. Get Married! In China, ghost marriages —the practice of setting up deceased relatives with suitable spouses, dead or alive— is on the rise. The marriages serve a religious function by making the deceased happier in the afterlife.
2. Go Green! Cremation uses up a lot of energy and nonrenewable resources. In Europe, some crematoriums have ‘gone green’. These crematoriums have found a way to replace conventional boilers by harnessing the heat produced in their fires. Beginning in 1997, the Swedish city of Helsingborg has used local crematoriums to supply 10 percent of the heat for its homes.
3. Stand Trial! In 897 CE, Pope Stephen VI accused former Pope Formosus (who had died nine months earlier!) of perjury and violation of church canon.  Pope Stephen VI proceeded to exhume the dead pope’s body, and put the corpse on trial and subject it to a full cross-examination - the so-called "Cadaver Synod".  The following year, Formosus’ conviction was overturned and his body was reburied with full honours. 

For the complete list, check out the article at http://www.mentalfloss.com/blogs/archives/24833.

Have a great weekend!
Bianca La Neve

Bianca La Neve - Click here for more information on Bianca La Neve.

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A good friend of mine recently reminded me that death is not just about dividing up the spoils (a common theme in estate litigation), but also about remembering the lasting contributions made by a person during their lifetime. I was reminded of this in reading about the recent deaths of two well-known figures, Donald Marshall and Eunice Kennedy Shriver.

Donald Marshall passed away last week in Sydney, Nova Scotia. In 1971, when he was just seventeen years old, Mr. Marshall was wrongfully convicted of a crime he did not commit and jailed for eleven years. He subsequently challenged the legal system and blazed a trail for other wrongfully convicted Canadians to fight to have their convictions overturned. His case led to a Royal Commission in 1990, which produced a slew of recommendations that fundamentally changed the criminal justice system in Nova Scotia. In 1993, Mr. Marshall again reluctantly stepped into the spotlight, when he was arrested and eventually convicted of various fishing violations. Mr. Marshall fought his convictions all the way to the Supreme Court of Canada, winning acquittals and a significant victory for the native treaty rights of his people, the Mi’kmaq Nation. 

This week, Eunice Kennedy Shriver (President John F. Kennedy's sister) passed away. Eunice Kennedy Shriver was a champion for the rights of the mentally disabled and founded the Special Olympics, which has grown into a truly global event. President Obama noted in a statement that Mrs. Shriver will be remembered as "as a champion for people with intellectual disabilities, and as an extraordinary woman who, as much as anyone, taught our nation — and our world — that no physical or mental barrier can restrain the power of the human spirit".

Thanks for reading,

Bianca La Neve

Bianca La Neve - Click here for more information on Bianca La Neve.

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Cy pres is the equitable doctrine under which a court interprets a document containing a gift to charity by substituting another charity to reflect as closely as possible the donor’s intention. Courts use cy pres when a donor’s original charitable purpose cannot be exactly fulfilled. When literal compliance is impossible, the general intention of the donor should still be carried out as nearly as possible (cy pres) so that the charitable bequest does not fail.  

In our area of expertise, estate and trust litigation, cy pres applications are quite common to determine the proper beneficiary(s) of a subject testamentary bequest.  Megan Connolly has blogged on the application of the cy pres doctrine to charitable bequests in Wills. Cy pres has been applied in other areas of the law.

In the context of class action proceedings, settlements increasingly include cy pres orders (as they are often called) where part of the settlement funds are paid to charitable and non-profit organizations, to be applied to activities that may reasonably be expected to benefit class members. In a recent decision approving the settlement of a class action against a financial institution involving alleged unauthorized charges for foreign currency transactions, Justice Cullity reviewed cy pres orders in class action settlements and ultimately made an order for the Law Foundation of Ontario to receive $14.2 million to create a trust fund “for the purpose of advancing public access to justice in Canada”. Justice Cullity noted that access to justice had been used as a ground for certifying the proceeding. Class members and other members of the public would benefit from enhanced access to justice in the future. 

Thanks for reading,

Bianca La Neve

Bianca La Neve - Click here for more information on Bianca La Neve.

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Listen to: Tax Issues for Estate Planning - Hull on Estate and Succession Planning #176

This week on Hull on Estate and Succession Planning, Ian Hull goes through a summary of considerations for dealing with Canadian tax issues from an estate planning point of view.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

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Listen to: Tax Issues - Hull on Estates #175

This week on Hull on Estates, Ian Hull discusses tax issues, specifically those concerning Canadian clients who are leaving the country.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

Ian M. Hull - Click here for more information on Ian Hull.

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In a recent news item out of Queensland, Australia, a 77-year-old man has failed in his attempt to regain control of his financial affairs. The elderly gentleman had apparently squandered part of his money on hundreds of calls to sex-chat lines. The Guardianship and Administration Tribunal of Queensland had made an order last year giving control of the elderly gentleman’s financial affairs to the Public Trustee. In November 2008, the Tribunal upheld its original order, leading the elderly gentleman to appeal the matter to the Supreme Court. Last week, the Supreme Court denied the appeal and agreed that the Tribunal retain control over the man’s financial affairs. 

Details of the hearing cannot be released due to a publication ban. One wonders whether the sex-chat calls were isolated incidents or part of a pattern of unusual behaviour that convinced the Tribunal (and the Supreme Court) that the elderly gentleman’s capacity to manage his own finances was impaired. It is also unclear whether the man had family and/or whether any of his family supported his fight to regain control of his money. 

I note that the Guardianship and Administration Tribunal of Queensland has similar duties and responsibilities to Ontario’s Office of the Public Guardian and Trustee of Ontario (OPGT) and the Consent and Capacity Board. The Tribunal of Queensland can determine whether or not a person has impaired decision-making capacity and, if necessary, make an order appointing a guardian and/or an administrator. In Ontario, it is the courts that primarily make determinations of incapacity. 

Thanks for reading,

Bianca La Neve

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Polypharmacy refers to the taking of multiple drugs by a single patient. As more and more drugs are introduced on the market that address the diseases and chronic conditions associated with aging, it is no surprise that it is the elderly who are most affected by polypharmacy. According to a Toronto Star article that appeared as part of their 2008 Atkinson Series, 23% of seniors over the age of 65 take at least five drugs, while 12% are taking 10 or more drugs. Generally, these individuals are seeing more than one specialist for more than one ailment and the issue is simply a lack of oversight in order to keep the ‘larger picture’ in view.

Delving deeper, however, USA Today cited a report by the Center for Substance Abuse Prevention that 17% of Americans over the age of 60 are abusing prescription drugs. In such instances of substance abuse, it is not unusual for the individual to visit numerous physicians ('doctor shopping') and process their prescriptions through a variety of pharmacies in order to hide the abuse. Particularly addictive drugs in the elderly population are the benzodiazepines (prescribed for anxiety and insomnia) and narcotic painkillers. Risk factors include a prior history of alcoholism or substance abuse. The effects of prescription abuse include confusion, memory impairment and an increased incidence of falls. In 1995, the Canadian Medical Association Journal reported that the doctors who wrote the most prescriptions also had the highest death rates amongst their patients.

So where does one draw the line between prescription use and prescription abuse? When a drug is used for a non-prescribed purpose or when use increases beyond the prescribed dose, then addiction is an issue. If you have a concern about an aging relative, stay connected and informed and periodically check for drug compliance (this is as simple as looking at the fill date and counting the number of pills thus far consumed). Assess alternatives (a pain management specialist, perhaps) and if necessary, express your concerns to the prescribing physician.

Jennifer Hartman, Guest Blogger

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Although one of the perils of running an estate blog over the past month has been (with apologies to CNN) the risk of over-reporting on the estate of Michael Jackson, the media frenzy has nonetheless served to shine a light on certain aspects of estate planning that otherwise go unnoticed.

A clause appointing a guardian for one's child(ren) is not always one that younger testators choose to put in their wills. This may in part be due to the statistical unlikelihood of both parents dying before a child reaches the age of eighteen.  In such a tragic eventuality, and as Natalia Angelini noted in her recent blog on the subject, the ultimate decision on guardianship is in the court's discretion.

A recent article posted online by the Canadian Press comments on the difficulty that couples may encounter in trying to agree on a guardian for their child(ren).  Some will want a friend; others will insist on a family member.  Complicating any decision may be such considerations as the likelihood of the proposed guardian relocating to a foreign jurisdiction or remarrying someone who, in hindsight, may not prove to be a good parent to the children.

It is always a good idea to plan for any statistical anomaly.  The Courts will typically respect the choice of the testator and assign great weight to his or her wishes.  The alternative of leaving the decision completely unfettered by such wishes is not one that any parent of a young child would want to contemplate.

David M. Smith

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Hull & Hull LLP will be posting our second 'health series' of blogs starting on Monday August 10th.  The series will run every Monday thereafter in the month of August, for a total of four blogs.  The following subjects will be featured:

• Polypharmacy and Seniors
• Multiple Attorneys for Personal Care
• Traumatic Brain Injury
• Palliative Care - an Overview

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.

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I recently had the opportunity to meet with a gentleman named Franco Lombardo from Vancounver B.C. who has pioneered the concept of "authentic wealth" in the context of succession planning.  Franco has written two books:  Life After Wealth and Money Motto both of which deal with and elaborate on his core concepts of devising strategies for individuals who want to create a meaningful personal legacy. 

In Lombardo's words: "Authentic Wealth involves seeing, understanding and releasing fears around money, and, at the same time, embracing a deeper understanding of who we are, why we are here, and how we create meaning through the choices we make every day"

Franco has founded Veritage, a company through which he consults with clients with a view towards a more holistic succession planning strategy.   The concept of collaboration between a testator and his or her beneficiaries in realizing family objectives has also been explored by Ian Hull of our office and his concept of the Family Conference as a means of avoiding estate litigation. 

David M. Smith

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Listen to:  Unjust Enrichment - Hull on Estates #174

This week on Hull on Estates, Diane Vieira and Rick Bickhram discuss a recent decision from Judge Daley regarding unjust enrichment, using the case of Simonin vs. Simonin as a background to explain the issues surrounding unjust enrichment.

Simonin v. Simonin, 2008 CanLII 58155 (ON S.C.)

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

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Listen to: Transferring the Family Cottage - Part 7 - Hull on Estates and Succession Planning #175

This week on Hull on Estate and Succession Planning, Ian and Suzana recap their cottage series and discuss the possibilities that may arise with the beneficiaries, such as disinterest in the property or incapacitation.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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The gradual demographic shift to an aging population is causing governments to reevaluate how to ensure that appropriate funding is in place to provide for long-term care.

A recent article on the BBC website references the work of a task force commissioned by the British government to consider the feasibility of three different models for the funding of post retirement long term care.

The three plans are:

Partnership - The state guarantees a base level of care, leaving the individual to fund the difference; 

Insurance - The same as partnership, except that the government would help set up insurance schemes for people to pay into to cover the difference; and 
 

Comprehensive - Payments of up to £20,000 to be paid by an individual after retirement.  In exchange, all social care, except accommodation costs, would be paid for by the government.  The payment by the individual could be paid in a lump sum, through installments, or garnished from his or her pension.

The authors of the proposals note that many people will be better off under these models as the average cost of social care for a 65-year-old is £30,000 over the rest of their lifetime. Another aspect of the proposals allows deferral of the costs of residential care until death when the outstanding bill would be a charge against the individual's estate.

Of course, the accepted model will depend on the outcome of a vigorous political debate that will have to weigh the sacrifices required to fund the costs of caring for an aging population.

David M. Smith

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The moment of death is obviously the seminal triggering event in the context of estate and trust law.  As but one example, a Will speaks from the moment of death.

A recent article in the National Post raises an interesting question regarding when death actually occurs and how it is defined.  There is a medical difference between "cardiac death" and "brain death."  As the article notes, the issue is of most concern in the context or organ donation. Simply put, the cardiac death protocol provides that declaration of death may be made 5 minutes after cardiac death.  However, in extremely rare instances, case have been reported of a "Lazarus syndrome" and "auto-resuscitation" as long as ten minutes after cardiac death.  In any event, a person may still have brain activity for a period of time after cardiac death.

As Jocelyn Downie, an ethicist at Dalhousie University notes: "It is only after the declaration of death that certain things can happen:  we can take your organs, we can bury you, we can do an autopsy...we can trigger all sorts of things around your property."  Downie advocates a more rigid definition. 

Legislation in most provinces suggests that death is to be determined by physicians according to "current medical practice." PEI's law is more specific (death can "include brain death").  In Quebec, there is no legal definition at all:  the matter is left completely to the physician.

Ontario's Trillium Gift of Life Network endorsed the new donation-after-cardiac-death (DCD) protocol only after extensive research and consultation that ensured it is a moral and medically appropriate practice.

David M. Smith