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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Justice J. Wilson’s decision in Ferraton v. Shular is a cautionary tale about how important it is to choose someone trustworthy to be your Attorney for Property.

In 2006, Gary Shular inherited his mother’s property. Mr. Shular had a history of mental illness and depression. After two years, the property had been neglected. Mr. Shular’s friend, Ms. Ferraton, offered to fix up the property and sell it. In exchange, she wanted 50% of the selling price. The parties signed a contract to those terms.

After investing a mere $2,115 in the property, Ms. Ferraton listed the property for sale as Mr. Shular’s Attorney for Property. After deductions, Mr. Shular received $140,000 from the sale. Mr. Shular refused to pay Ms. Ferraton half of the proceeds, being $70,000. Instead, he repaid her the investment of $2,115 in the repairs, and gave her an additional $20,000 for her assistance.

Ms. Ferraton sued Mr. Shular for an additional $32,000.

Mr. Shular’s history of mental illness and depression was central to Justice J. Wilson’s finding that Ms. Ferraton took advantage of Mr. Shular:

“Ms. Ferraton was well aware of Mr. Shular’s emotional frailties and history, and took advantage of his passivity and listless attitude towards the property during a period of deep depression. What appears to have begun as an act of friendship, matured into a plan to profit from the situation and to take advantage of Mr. Shular’s emotional state and apathy.”

Justice Wilson found that the contract was unconscionable, and was therefore unenforceable.

Holly LeValliant
 

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Earlier this year, I blogged about the revocation of powers of attorney. Today, I want to address the other ways by which a power of attorney may be terminated.

A continuing power of attorney is terminated when the following events occur:

• The attorney dies, becomes incapable, or resigns, unless the document provides for the appointment of a substitute attorney.
• A guardian of property is appointed by the court.
• A new continuing power of attorney is executed, unless it provides for the existence of multiple continuing powers of attorney.
• The death of the grantor.
• The grantor revokes the power of attorney.

When an attorney commences to act under the continuing power of attorney, their resignation is not effective until a copy of the resignation is given to the grantor and any other attorneys under the power of attorney, including substitutes. Section 11(1) of the Substitute Decisions Act  (the “Act”) provides that when a grantor has become incapable and there is no substitute attorney who is willing or able to act, the attorney’s notice of resignation must also be given to the grantor’s spouse, partner and relatives who are known to the attorney and reside in Ontario. Section 11(1.1) of the Act provides that notice does not need to be given to a spouse when they are living separate and apart from the grantor. This is also the case for relatives that are related only by marriage. Section 11(2) of the Act also imposes an obligation on a resigning attorney to make “reasonable efforts” to give notice of the resignation to persons with whom the attorney previously dealt on behalf of the grantor and with whom further dealings are anticipated.

It is important for lawyers to advise their clients that the execution of a new continuing power of attorney will cause the revocation of an existing power of attorney given to for a specified purpose. Lawyers should also advise their clients that an unrestricted power of attorney can be revoked inadvertently by signing a subsequent continuing power of attorney with a bank or other financial institution when that power of attorney does not provide for multiple continuing powers of attorney.

Thanks for reading.

Ian M. Hull

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There has been much written on the accounting duties of attorneys, and several cases address the issue. One such case may be helpful to those attorneys who find themselves being called to account by third parties notwithstanding that the grantor of the power of attorney is mentally capable and has not requested any accounting. 

In Koperniak v. Wojtowicz the applicant was the grantor’s daughter, who made accusations regarding the attorneys’ management of her mother’s financial affairs. The attorneys were the grantor’s sons, and there was evidence that the grantor was content to have them handling her financial affairs.

The Court considered the evidence and the applicable legislation (s. 42(4) of the Substitute Decisions Act) that lists the persons who may apply to have attorneys pass their accounts. Despite the basket clause that states “any other person, with leave of the court” can apply to have attorneys’ accounts passed, the Judge did not agree that leave ought to be granted in this case, particularly as the grantor was capable and able to confirm her wishes, and as no evidence was found to have been advanced displaying the necessity to pass accounts. While the brothers had used their powers to sign a small number of cheques, the Judge held that this fact did not automatically give rise to an entitlement to a passing. Accordingly, the application was dismissed.

You will be able to find more on this case and other topics covered at our firm’s recent breakfast series.

Thanks for reading and have a good day,

Natalia Angelini

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The grantor of a power of attorney can revoke that appointment at their discretion so long as he or she retains capacity. According to s. 8(2) of the Substitute Decisions Act (the “SDA”), the test for capacity to revoke a continuing power of attorney is the same as the test for making one. S. 8(1) of the SDA outlines a list of sufficient conditions to be met in order for capacity to be established. The grantor is said to have capacity if he or she:

• knows what kind of property he or she has and its approximate value;
• is aware of obligations owed to his or her dependants;
• knows that the attorney will be able to do on the person’s behalf anything in respect the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
• knows that the attorney must account for his or her dealings with the persons property;
• knows that he or she may, if capable, revoke the continuing power of attorney;
• appreciates that unless the attorney manages the property prudently, its value may decline; and
• appreciates the possibility that the attorney could misuse the authority given to him or her.

Once capacity has been established, the revocation of the power of attorney must be done in writing and the formalities for revocation are the same as those for making one (SDA, s.12(2)). S. 13 of the SDA provides protection for third parties who honour the attorney’s authority in good faith and without knowledge of its revocation.

From a practical standpoint for estate planning practitioners and their clients, it is prudent to maintain a record of how many copies of a power of attorney have been signed and to whom they have been distributed. In the event of a revocation, this record will assist in recalling the documents so as to guard against their improper use following a revocation.

Ian M. Hull

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By preparing a power of attorney for property, one appoints a substitute decision-maker to make decisions on one’s behalf once they become incapable.  With the powers bestowed upon the attorney, however, come duties as well.  In an age where people are living longer and longer, the appointment of an attorney is becoming more common.  Unfortunately, not every attorney is aware of the duties he or she has in fulfilling this role.  As a result, I thought I would take this opportunity to review some of the duties imposed upon an attorney for property.

In order to properly understand the duties an attorney for property has, it must be determined whether the donor is in fact capable.  This determines whether the relationship between the attorney and the donor is one of agency or that of a trustee.  In Banton v. Banton (1998), 164 D.L.R. (4^th) 176, Cullity J., at 239, states:

“An attorney for a donor who has mental capacity to deal with property is merely an agent and, notwithstanding the fact that the power may be conferred in general terms, the attorney's primary responsibility in such a case is to carry out the instructions of the donor as principal.  As an agent, such an attorney owes fiduciary duties to the donor but these are pale in comparison with those of an attorney holding a continuing power when the donor has lost capacity to manage property”.

Once a grantor becomes incapable, the attorney must make decisions pursuant to s. 32(1) of the Substitute Decision Act, 1992 (the “SDA”), which provides:

“A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit”.

Clearly, the duty expected is of a much higher standard.

In addition, s. 32(6) of the SDA requires that an attorney keep accounts of all transactions involving the grantor’s property.  This must be read in conjunction with s. 2(1) of the Ontario Regulation 100/96, which provides an extensive list of what should be included, amongst other things:

·         A list of the incapable person’s assets as of the date of the first transaction by the attorney;

·         An on-going list of assets acquired and disposed of on behalf of the incapable person; and

·         An on-going list of all money received on behalf of the incapable person, including the amount, from whom it was received, and the reason for the payment.

An attorney for property must continue such accounts until he or she ceases to have authority and is discharged by the Court on a passing of accounts under s. 42 of the SDA.

Thank you for reading.

Suzana Popovic-Montag

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Money, heirlooms and other property are not the only items one can leave behind on death. Much time and attention is spent on making arrangements for burial and on other aspects of estate planning. However, often overlooked during the estate planning process are the most valuable gifts a person has to give – their organs. Although an emotionally charged and deeply personal subject, the decision to donate or not to donate organs ought to be considered when planning ahead for what happens when we die. 

The regime for organ donation in Ontario is governed by the Trillium Gift of Life Network Act. The Act sets out who may give consent to donate organs for implantation, for medical education, or for scientific research. Consent can be given by the donor in writing at any time, so long as he or she is over the age of sixteen. Consent can also be given verbally, but verbal consent is only valid if it is given during the donor's last illness, and in the presence of two witnesses. An organ donor card may be helpful as it may constitute written consent. However, if the card is not immediately available at the time of death, it may not be discovered until it is too late.

Many difficult end-of-life decisions can be dealt with by way of a power of attorney for personal care such as to what extent extraordinary life-extending measures may be taken. This can save loved ones from having to make these agonizing decisions under such trying circumstances. Unfortunately, this is not the case when it comes to organ donation. A power of attorney ceases to operate on death. The Substitute Decisions Act at section 66(14), read together with section 67, specifically exempts "[t]he removal of regenerative or non-regenerative tissue for implantation in another person's body" from the ambit of the Act, and therefore the powers that can be granted under a power of attorney. 

If there is no consent from the potential donor, this difficult decision is left in the hands of the grieving family. The person's spouse, if available, will be forced to decide during one of the most difficult times of his or her life. If there is no spouse or if the spouse is unavailable, the responsibility will fall to the person's children, then parents, then siblings, then next of kin, and finally to the person in legal possession of the body, in that order. 

It is very important, therefore, that your wishes with respect to organ donation are made known in advance to your loved ones or to whoever may be at your bedside at the time of death. While not an easy conversation to initiate, it is a very important one to have. The issue should be given some attention when preparing a will or estate plan, giving a power of attorney, or before undergoing a risky medical procedure. 

The most effective way to ensure that your wishes are followed at the time of death is to register with the Trillium Gift of Life Network. The Network allows you to register your consent in a secure database that will only be accessed in the event of your death or imminent death after all life-saving efforts have failed. It is a sure and secure way to make known your wishes either to donate or not to donate. Online registration is available here. 

The Trillium Gift of Life Network is a great resource for information on organ donation. Whether you would prefer to preserve the integrity of your body on death, or to give a potentially life-saving gift, it is important to take the proper steps in advance to ensure that your most important testamentary wishes are followed.

Ian M. Hull

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One could easily be forgiven for assuming that a conversation between a parent and child over one party granting the other a power of attorney would focus on the parent granting their child a power of attorney to assist them in their old age. An article recently caught my attention however after the author encouraged parents to have their university bound children grant them a power of attorney for personal care before dropping them off on their first day.

While much of the conversation in the article is US specific, the reasoning behind why a parent may want to have their university bound child grant them a power of attorney seems simple enough. University is likely the first time that the child will be away from home, and accidents do happen. By having their child grant them a power of attorney, in the event that the worst should happen, the parents could easily step in and assist their child with medical decisions while they are incapacitated.

An obvious concern would be to ensure that the student knew and understood what they were granting to their parents. The image of a young university student showing up on their first day of school and being told “sign here for your dorm room key, here for a copy of your schedule, and here to grant your parents the ability to consent to medical decisions on your behalf” is something that should obviously be avoided.

While having a university bound student grant their parents a power of attorney is an interesting topic for consideration, in Ontario it might not be necessary. Section 20(1)(5) of the Health Care Consent Act, 1996  provides that if a person is incapable, consent to medical treatment may be given or refused on their behalf by their parents so long as no one higher on the list of those able to consent (such as a person’s attorney under a power of attorney or spouse) is willing to assume the responsibility.

Thank you for reading.

Stuart Clark 

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MPP John O'Toole is once again pushing a Private Members Bill which aims to overhaul the Power of Attorney system in Ontario.  The Bill, entitled The Protection of Vulnerable and Elderly People from Abuse Act (Powers of Attorney), 2010 proposes a registry for Attorneys, annual accounting to the Public Guardian and Trustee ("PGT"), as well as a requirement that someone other than a family member be one of the two witnesses to the granting of a Power of Attorney.

The Bill, if passes, would amend the Substitute Decisions Act to provide:

  - that only one of the witnesses to a Power of Attorney may be a relative of the grantor;

  - an attorney under a continuing power of attorney shall provide an annual accounting of the following information to the PGT:

    1.  The grantor's assets

    2.  The grantor's liabilities

    3.  The compensation taken by the attorney

    4.  All other prescribed information

  - The PGT shall establish and maintain a register containing the information received from the attorneys; and

  - The PGT shall disclose the information contained in the register with respect to a power of attorney to any of the following persons who request the information, if the person identifies the grantor by name and pays the prescribed fee:

    1.  The grantor's spouse or partner

    2.  The grantor's children who are at least 18 years old

    3.  The grantor's parents

    4.  The grantor's brothers and sisters who are at least 18 years old

While changes to the Power of Attorney system are needed, these proposed changes represent a radical overhaul to the current system and are unlikely to pass.  Although the writer agrees that the system does not do enough to protect grantors from abuse, there are a number of less drastic steps that should be considered before we move to annual accounting requirements and a formal registry.

The disclosure provisions are also a major cause for concern.  Many grantors would not want their relatives to have access to such information, and in many cases, providing such information to the listed family members would not be in the best interests of the grantor.

Moira Visoiu - Click here for more information on Moira Visoiu. 

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Despite the breadth of an attorney’s power under the Substituate Decisions Act, it is subject to significant qualification (subsections 32(7) or 32(8)).  An attorney is not to dispose of specific property that she/he knows is subject to a testamentary gift in the incapable person's Will, unless it is necessary to do so to otherwise comply with the attorney's duties (section 31.1) .

The accountability provisions of the SDA have not been fully tested, leaving uncertainty regarding the parameters of an attorney’s functioning. That said, the decisions being made appear to reveal the courts leaning towards a strict construction of the scope of an attorney’s authority to act.   

For example, in Volchuk v. Kotsis, the Court disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting, in addition, that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act (which provides that evidence must be corroborated by other material evidence). 

Further, in Biamonte Estate v. Ward Estate, a property owned by three deceased persons as tenants in common, and ultimately conveyed by an administrator of one of these estates to benefit her son, was found to be an improper exercise of the power of attorney.   

In addition, in McMullen v. McMullen, an elderly widower commenced an application against two of his three daughters, who held his power of attorney. The daughters transferred a 99% interest in the father’s condominium property to their husbands to preserve their father’s asset (to protect it from being depleted due to a new female acquaintance). The Court declared the condominium transfer null and void. Notably, there was no evidence to show that the father was incapable of managing his financial affairs.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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The much discussed case of Reviczky v. Meleknia; Caplan (Intervenor) shone a light on questions about a solicitor’s duty to look beyond a power of attorney.   The facts are summarized in my earlier blog.

This ruling and other case law was cogently reviewed by Deborah Petch in the LawPRO Practice Pro Magazine (Summer 2008). She comments on how the Reviczky ruling has generated discussion among lawyers, with two divergent lines of thinking coming through: some argue that a new standard of care has been imposed, which requires lawyers to “go behind” a power of attorney and not accept it at its face value; while others assert that the usual practice is sufficient and further inquiries do not need to be made.   

From a review of these and other materials, I gather that we may wish to ensure the following when preparing a power of attorney for property and/or when dealing with a transaction involving a power of attorney:

·                    fully explain the nature of the power of attorney;

·                    make sure the donor is fully aware of the consequences (this is especially important when you have had no prior contact with the person, and are acting on behalf of another client);

·                    when you are acting for another client who will benefit from the power of attorney, insist that the donor obtain independent legal advice;

·                    make the power of attorney time-limited when appropriate;

·                    make the terms of the power of attorney no broader than absolutely necessary;

·                    scrutinize the document for irregularities on its face e.g. How many witnesses have signed? Where was it signed?;

·                    consider other questions in order to be alert to suspicious circumstances, such as: When was it signed? How old is the donor? What kind of transaction is being contemplated?;

·                    confirm the transfer with the donor directly (if possible) if these inquiries do not satisfy; and

·                    confirm the transfer with the donor directly (if possible) when the attorney wants to take the property for him/herself, unless the document expressly allows this.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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Powers of attorney for property are generally accepted in most Common Law jurisdictions and many Civil Law jurisdictions, which is important given that many have family members and assets in various parts of the world. Subsection 85(1) of the Substitute Decisions Act provides that the foreign grant is valid if at the time of execution it complied with the internal law of the place where it was executed, where the donor was domiciled or where the grantor had his or her habitual residence. 

When multiple jurisdictions are involved, it may be helpful to have a power of attorney prepared in accordance with the rules of the jurisdiction where land is located, so that the forms the regulatory and registration bodies are familiar with are in use. However, take care to ensure that the document contains language specifically preventing revocation. Otherwise a new power of attorney, albeit in a foreign jurisdiction, will effectively revoke any earlier power of attorney granted in Ontario (subsection 12(1)(d) of the SDA). Conversely, a later grant under the SDA will serve to revoke all foreign grants (although section 12 of the SDA would be of no effect when presented in a jurisdiction that does not recognize such powers). 

Here is some noteworthy information regarding the recognition of an Ontario power of attorney for property in other provinces:

·                    it will be valid in Saskatchewan and Manitoba as long as it is valid according to the laws of Ontario, and continues despite the mental incompetence of the donor;

·                    it will be valid as a springing or enduring power of attorney in Nunavut if it is valid according to the laws of Ontario, and it provides the appropriate statement as to its commencement or continuation;

·                    it will be recognized in Quebec, but will be subject to approval and will receive the scrutiny of the courts; and

·                    the legislation in all other provinces currently seem to be silent regarding the application of foreign powers, such that if a grantor has property in any of these provinces one should confer and/or retain local counsel to assist.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

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Billionaire and recently deceased American shopping mall developer Melvin Simon's heirs are fighting over his last will.  Mr. Simon's children from his first marriage are challenging a will that changed the distribution of his estate in favour of his second wife.  Aside from the glamour factor, the case is interesting in that an allegation of fraud was recently dismissed on the grounds that "[t]he complaints fail to allege affirmative misrepresentations that can support a claim of actual fraud".

This illustrates an important point in estate and trust litigation.  Ontario's Rules of Civil Procedure similarly requires pleadings that contain allegations of fraud or breach of trust to contain full particulars:

"Rule 25.06(8)  Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred."

This could theoretically present beneficiaries challenging the actions of a trustee, since the trustee frequently has the particulars and the beneficiaries do not.  In practice, this problem rarely arises because most litigation occurs in the context of a passing of accounts, where it is unnecessary to make allegations against the estate trustee.  Instead, under the procedure in Rule 74, the beneficiaries can simply file and serve a Notice of Objection to Accounts challenging transactions or omissions in the trustee's accounts.

After filing their Notice of Objection to Accounts, the beneficiaries can then bring a motion for an order giving directions (or an order for assistance) that will provide for the disclosure of the particulars they think exist.  After receiving full disclosure, the beneficiaries should in a position to make a better-informed decision on whether to add such allegations to their pleadings. 

Where this process is anticipated, the order should specifically authorize the parties to return to court for further directions.  Of course, it would rarely even be necessary to allege fraud at all, since the facts that support the allegation of fraud can form the basis of an objection to the accounts without using the words "fraud" or "breach of trust", and this can achieve the same practical result without the risks associated with alleging fraud.  Beneficiaries can also avoid the risk of having their pleadings struck at an early stage.  

Have a great day,

Christopher M.B. Graham - Click here to learn more about Chris Graham.

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Trustees often run into difficulties when they pay themselves compensation prior to passing their accounts.  They are said to have "pre-taken" compensation, meaning having paid themselves compensation prior to passing their accounts.  Fortunately for guardians of property (and attorneys), section 40 of Ontario's Substitute Decisions Act allows guardians to pay themselves compensation at intervals during the guardianship before passing their accounts:

40.  (1)  A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.

(2)  The compensation may be taken monthly, quarterly or annually.

Amounts taken monthly or quarterly could be divisions of a calculated "annual" amount, but this provision contains no element requiring equal divisions.  Regardless of how the property guardian takes compensation, any payment is subject to court approval.  Clients applying for guardianship should always be advised specifically of this point: if the court later disagrees with the compensation taken, the guardian may have to repay such amounts.  This holds true even where the Management Plan pursuant to which the guardian is managing the incapable person's property authorizes the compensation the guardian has taken.

This raises another important consideration for lawyers in the application for guardianship stage.  Any compensation taken, or claimed later on a passing of accounts, should not be inconsistent with the provisions of the Management Plan.  Because the right to compensation is statutory, as are the prescribed percentages (though subject to discretionary reduction by the court), there is no need to declare an intention to take compensation in the Management Plan.  But if the Management Plan contains a provision disclaiming compensation, for instance, no compensation should be taken during the guardianship.

Have a great day,

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

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A “Living Will” or “Advance Directive” is a document that indicates the grantor’s preferences with respect to health conditions and treatment, including the level of medical intervention. It is a guide for the person who must communicate with physicians and make health care decisions in the event the patient is not able to do so him or herself. It is different from a Power of Attorney for Personal Care, which is a document naming a specific person to act on your behalf.

An Advance Directive can be very detailed and tailored to the individual’s personal circumstances. For example, on the University of Toronto Centre for Bioethics website you can find information on a Cancer Specific Advance Directive. 

Given the complex medical nature, it may well be that the specifics of such a directive lay more comfortably in the bailiwick of the health care professional rather than the legal professional.  Ideally, the Power of Attorney for Personal Care should include a detailed health care directive. This approach offers the assurance that the grantor’s wishes are taken into account without the wording in the Advance Directive inadvertently voiding his or her Power of Attorney for Personal Care.

A Power of Attorney for Personal Care may also include conditions or restrictions other than Advance Directives such as limiting the attorney's ability to act until a confirmation of incapacity has been obtained, and determining the method of assessing capacity.

If a person becomes incapable of making personal care decisions and has no Guardian of the Person or Power of Attorney conferring the authority to make health care decisions, the Health Care Consent Act of Ontario provides a statutory hierarchy of persons who can provide consent on the incapable person's behalf in descending order of authority as follows:

1. Spouse or partner
2. Child or parent
3. Brother or sister
4. Any other relative

Therefore, it is especially important to prepare a Power of Attorney for Personal Care if you would not want your spouse, child or parent to make health care decisions on your behalf should you become unable to make them yourself.

For further information on this topic, see Q & A on Powers of Attorney and Living Wills by the Office of the Public Guardian and Trustee for Ontario, or this book about Living Wills by M. Dianne Godkin.

Thanks for reading.

Sharon Davis

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

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For those of you with one eye on the next page of the calendar, Hull & Hull LLP will be posting our third series of medical/health blogs starting on Monday January 4th, 2010. The series will run every Monday thereafter in the month of January, for a total of four blogs. The following subjects will be featured:

• Pseudodementia
• Lewy Body Dementia
• Korsakoff's Syndrome
• Huntington's Disease

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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Attorneys for property who receive gifts from grantors tomorrow will have to give them back, unless they have good evidence supporting the fact of the gift.  The rule that fiduciaries (including attorneys for property) must prove purported gifts is stated in Cooke v. Lamotte(1851), 15 Beav. 234 at page 239.

Justice Sheard applied this rule in Kee v. Yip [1995] O.J. No. 2879, disallowing a series of transfers by an attorney to himself, stating with respect to one such transfer, “The burden on Tom Kee to show that his mother gave him the $20,000 is a heavy one. His evidence, simply the assertion that this transaction, one of many that he did under power of attorney, was intended by her as a gift to him falls well short of discharging that burden of proof. Under the principle stated in Cooke v. Lamotte, supra, the $20,000 cannot be allowed as a gift and must be refunded." 

Even more recently, in Volchuk v. Kotsis, 2007 CanLII 28527 (ON S.C.) Justice Langdon disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting in addition that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act, which provides that the claimant “shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” 

In estates litigation, this rule is very useful in passings of accounts initiated pursuant to section 42 of the Sustitute Decisions Act by disappointed beneficiaries of an estate against the deceased's former attorney for property.  Of course, this rule forms part of the Common Law and is not confined to passing of accounts proceedings.

Merry Christmas to fiduciaries including attorneys, and enjoy your presents.

Chris Graham

Christopher 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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To assist real estate lawyers in identifying forged powers of attorney and fraudulent real estate transactions, the Law Society of Upper Canada has provided real estate lawyers with a set of new guidelines and procedures for powers of attorney and real estate transactions.

In order to address the issue of fraudulent transfers of title and mortgages, new registration requirements were implemented last year necessitating law statements by individuals registering real estate documents under the authority of a power of attorney. Paul Trudelle’s previous blog of last year describes the new registration requirements.

The new registration requirement and Law Society guidelines have in part been necessitated by the case of Revickzy v Melekinia. Natalia Angelini’s blog sets out the background of the case and comments on the possible impact on a solicitor’s duties.

The Law Society guidelines include the following suggestions:

• To the extent possible, lawyers avoid the use of  Powers of Attorneys in real estate transactions;
• That when a Power of Attorney is required and a pre-existing Power of Attorney does not exist, the lawyer should prepare the Power of Attorney themselves, meet with the donor and make diligent inquiries to establish that the donor’s identity;
• That lawyers for all parties should review Power of Attorney to determine that it is in compliance with legislation;
• That lawyers should use their best efforts to register the Power of Attorney on title and provide a copy of the registered Power of Attorney to the other side; and
• Lawyers comply with the Law Society client identification and verification requirements.

For more information, read Jonathan Morse’s blogs on mortgage fraud and how British Columbia is dealing with the issue.

Hopefully, in adopting these practices lawyers can assist in recognizing fraudulent real estate transactions.

Thanks for Reading,

Diane Vieira

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Removing an attorney for property is notoriously difficult. A person should only seek to remove an attorney for property when clear and compelling evidence presents itself. 

Where you feel the circumstances necessitate the commencement of a removal application, I recommend that you consider the following practical and strategic evidence-gathering steps, which may add teeth to your claim:

·                    Compile a detailed list of the attorney’s misdeeds and inactions;

·                    Consider asking The Office of the Public Guardian and Trustee to investigate;

·                    Talk to neighbours and caregivers to gather critical information;

·                    Maintain regular contact with the incapable person and try to ascertain his/her wishes; and

·                    Ask the attorney for regular progress reports.

Finally, it is worth considering applying to the court for directions regarding the conduct of the attorney before embarking on a removal application. The court may implement conditions and/or restrictions on an attorney’s activities and may also provide guidance as to whether a removal application is warranted as a next step.

For more on this topic and power of attorney litigation generally, I suggest you read Ian Hull’s book, Power of Attorney Litigation, 2000, CCH Canadian Limited.

Have a great day,

Natalia Angelini

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The words "aging population" have graduated from being an overworked cliche to a trite observation.  The implications are intuitively obvious in many contexts.  We've blogged here on this topic before and what it means for lawyers.  Our understanding of the implications continues to evolve, and it helps to keep an eye on other countries with similar levels of economic development, social services and legal cultures (and bigger populations hence more money to study the issue). 

One thing is becoming increasingly clear, and a quick tour over the ocean makes this crystal clear: our bodies seem to be outlasting our minds.

We all know the implications for increased demand for legal guardianship expertise, especially for The Sandwich Generation, and potential litigation later (which is enhanced by our general lack of knowledge of the depth of dementia across the population).  The Alzheimer's Society (see the Canadian website for a local view) states that 1 in 3 British over 65 years of age die from the disease.  The over-65s will constitute 25% of the UK's population by 2032, which means that 8% of all deaths (at least) in the UK will be caused by Alzheimers.  In other patients, the disease may still be present but not the cause of death.

Interestingly, Alzheimers was only the No. 5 cause of death among Americans over 65 years of age in 2004.  However, it turns out that Alzheimers and other forms of dementia often do not get noted on death certificates, at least in Boston.  If a similar trend exists elsewhere in the U.S., that might alter U.S. death statistics by raising the profile of Alzheimer's and dementia generally.    

Fire and brimstone, all is lost?  Not entirely.  Medical research can always help.  Also, see this article which offers a detailed applied statistical analysis on the U.S. demographic bubble (or lack thereof perhaps) in a non-estates context, yet still relevant to any lawyer to whom demographics is relevant.

Have a great day,

Chris Graham