Author: Nick Esterbauer

31 Jul

Genetic Testing to Determine Distribution of Murdered Vancouverite’s Estate

Nick Esterbauer Health / Medical, In the News, Litigation, Wills Tags: , , , 0 Comments

A young girl from China is eagerly awaiting test results of genetic testing that could mean that she is entitled to inherit her biological father’s $50 million fortune.

Gang Yuan, whom the child’s mother states is her biological father, was recently murdered in the Vancouver area.  The mother of his alleged biological daughter had a short-term romantic relationship with Gang, who was apparently aware that a baby girl had resulted.

Under the BC Wills, Estates and Succession Act, as the only child of Gang, the young girl in China would be the sole beneficiary of Gang’s estate, as he did not leave a valid Last Will and Testament and was unmarried at the time of his death.  In Ontario, the Succession Law Reform Act similarly provides that, if a parent dies intestate and is survived by no married spouse and only one child, that child will inherit the parent’s entire estate.

There has been some resistance to the genetic testing by Gang’s other family members, who wanted to have his body cremated.  However, just over two weeks ago, the British Columbia Supreme Court ordered DNA testing of Gang’s remains, which were chopped into more than 100 pieces.

Last year, Ian Hull and I co-authored a paper about fertility law from an estates perspective.  An interesting point that we considered was whether the same conclusion as may be reached in Vancouver could be drawn when a sperm or egg donor becomes a biological parent of a child with whom he/she either may or may not maintain a relationship, in the instances of intestacy or  class gifts.   The law remains unclear on this point, but will likely develop with increasing rates of infertility and use of donor genetic materials.

The results of the genetic testing with respect to the beneficiary of Gang Yan’s estate are scheduled to be released within the month.

Have a great long weekend!

Nick Esterbauer

30 Jul

Incapacity Planning Among Cancer Patients

Nick Esterbauer Capacity, Health / Medical, Power of Attorney Tags: , , , , , , , , , , 0 Comments

The results of a recent study published in the American Medical Association Oncology Journal suggest that more patients with cancer are obtaining Continuing Powers of Attorney for Property than in the past.  Approximately 74% of Americans facing cancer have a Power of Attorney for Property in place.  However, while not considered statistically significant, the use of Powers of Attorney for Personal Care and frequency of discussion with respect to end-of-life preferences have actually become less prevalent in recent years, with rates of only 40% (down from 49% in 2000) and 60% (down from 68%), respectively.

Older studies have suggested that physicians should re-evaluate a patient’s mental capacity after significant changes in medication, infection, metabolic disturbances, or diagnosis with a new medical problem, including cancer diagnosis and treatment, which may contribute to changes to mental capacity.  While mental capacity is time and task-specific and will require analysis on a case-by-case basis, memory and concentration problems are frequently linked to certain chemotherapy regimens.  Some reports suggest that oncology patients may experience the same mental impairment that is often seen at increased rates within the aging population.  Further, the cognitive difficulty that is often referred to as “chemo fog” is believed to become more debilitating with the intensity of the chemotherapy.  Other cancer treatments, including radiation and surgery, are believed to be less likely to influence a patient’s mental capacity, but medications, such as narcotic painkillers, that may be used to address treatment side effects can nevertheless impact lucidity and the understanding of medical procedures to which the patient’s consent is required.  Further, when cancer originates or metastasizes within the brain, neurological functioning may be more likely to become compromised, whether temporarily or for the long term.

The presence of powers of attorney within the cancer community according to the study conducted by Johns Hopkins School of Medicine does not differ greatly from the estimate of 71% of Canadians that have Powers of Attorney in place.  Generally, it is a good idea to ensure that individuals of all ages take the time to consider an incapacity plan and to have Power of Attorney documents prepared.  However, cancer patients may be more likely than others to have to make important decisions between different treatment options.  In situations where diminished capacity may become a more likely scenario due to illness (or related treatment) or age, arrangements should be made to ensure that, if one becomes incapable of making important decisions him or herself, someone who can be trusted is authorized and prepared to do so on their behalf.

Thank you for reading.

Nick Esterbauer

28 Jul

Aging and American Gun Control

Nick Esterbauer Capacity, Elder Law, Ethical Issues, In the News Tags: , , , , , 0 Comments

Reaching the age of retirement and becoming eligible for government-funded pension benefits is a cause of celebration for many individuals.  However, for Americans who wish to exercise their Second-Amendment right to bear firearms, turning 65 may not be as happy an occasion as it once was.

American citizens become eligible for full Social Security benefits upon reaching the age of 65.  President Obama has recently announced plans to limit the ability of recipients of Social Security benefits to obtain and retain possession of guns.

If the proposed change is implemented, background checks conducted when individuals purchase guns will include a review of Social Security records.  Further, firearm registries may be reviewed to ensure that certain recipients of Social Security in possession of guns are identified and their weapons are confiscated.  The change in policy also impacts individuals who suffer from mental illnesses, who also receive social benefits.

President Obama has stated that the intention is to target individuals who fall under the federal firearm laws description of having “marked subnormal intelligence, or mental illness, incompetency, condition, or disease.”  However, approximately 4.2 million American adults receive benefits through Social Security that are managed by another person.  These people will be unable to purchase or possess firearms, despite the fact that not all of the individuals will fit into the target group of those whose access to guns is considered unsafe.

The issue in the proposed administrative change is that a person may receive assistance from another person in the administration of his or her affairs without having compromised mental capacities.  Critics of President Obama’s plan insist that seniors are a vulnerable group of society who are most likely in need of guns to protect themselves due to age-related decline in physical strength and increased frailty.  The inability to possess firearms is suggested to improperly compromise their constitutional right on the basis of age.

While this development in unlikely to affect the lives of Canadians, it is an example of the infringement of rights of the basis of age, whether or not justified by increased rates of cognitive decline, and it will be interesting to see whether the proposal withstands further review.

Thank you for reading.

Nick Esterbauer

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