Author: Suzana Popovic-Montag

24 Feb

How Does One Choose the Right Executor?

Suzana Popovic-Montag Estate Planning Tags: , 0 Comments

Your will sets out how your estate is to be divided upon your death, but it is up to your executor to settle your financial affairs and distribute the remaining assets to your beneficiaries. That is why choosing the right executor is so crucial. Here are some guidelines to help select who will perform this important role.

First, you may want to make sure the person lives in Canada. An estate is considered a trust, so there could be tax implications if it is controlled by a non-resident. Rules vary from province to province, so it is best to get someone close by since they will have to consult with your bank and lawyer when settling the estate.

Even with the simplest estate, your executor will have plenty of paperwork to complete. That includes gathering financial information required to file your final tax return, paying outstanding debts and estate expenses, and perhaps even applying to have the will validated by a court. Your executor should be comfortable with finances and dealing with government agencies. He or she should also not be afraid of asking for professional help when needed.

In many cases, trustworthiness is more important than expertise, as honesty trumps experience in this important role.

You will also want to make sure the person you appoint as executor is willing to devote the time and effort required to handle all these tasks, as the process can last for months, even years. In Ontario, more than one executor can be appointed under your will and you may want to consider obtaining consent before naming someone as an executor in your will.

If you are naming a single executor, however, it is wise to consider appointing an alternate. There is always the risk of your primary executor dying before you, or becoming ill, incapacitated or unwilling to act when it is time to settle your estate.

If you intend to leave the majority of your assets to a single person, such as your spouse, you may want him or her appointed as one of your executors. Adult children or other family members often serve in this role. That usually works well, but problems can arise if one family member feels he or she is performing more of the tasks than the others.

Tensions amongst surviving family members can cause problems within blended families, especially if a child from one marriage is put in charge of distributing your estate while those from another marriage watch suspiciously from the sidelines. Naming an executor from outside the family is definitely the better option in that situation.

There are also estate professionals who can be hired to act as executors. This may be a sensible alternative if your estate is complex, or if minors or disabled children have to be provided for through trusts. Having an outsider administer your estate may also be an effective way to avoid family conflict after you are gone.

Anyone serving as an executor of your estate can apply to the court for what is known as executor’s compensation, a form of remuneration for the work involved in settling an estate.

The age of your executor is also very important. While you may want a friend that you have known since childhood to be entrusted with this role, he or she may not be physically able to do the work that is needed when the time comes.

Just as you should be reviewing and updating your will on a regular basis, your choice of executor should also be revisited periodically. Personal circumstances change over time, and perhaps the person you chose to take on the task decades ago may not be as appropriate now.

Your estate is the last gift you will give to your family. Choosing the right executor ensures that the gift is distributed as you intended.

Thanks for reading … have a great day,

Suzana Popovic-Montag

10 Feb

Seniors’ Campuses of Care

Suzana Popovic-Montag General Interest, Public Policy Tags: , , 0 Comments

When Covid-19 swept across Canada in March of 2020, it proved to be a virus that does not discriminate between young and old or rich and poor. However, this virus took particular hold of our long-term care homes. In doing so, Covid-19 shed a glaring light on an already broken system. It exposed a deep-rooted and systemic problem. It revealed chronically understaffed homes with overworked caregivers, painfully lonely residents, and the innate need for social connection. It is amidst this bleak backdrop that advocates at Advantage Ontario have urged the provincial government to support more “Seniors’ Campuses of Care” (“Seniors’ Campuses”) across the province.

Seniors’ Campuses provide a range of housing options in a community-like setting, including: assisted living, affordable housing, retirement homes, and life leases. Seniors’ Campuses offer residents a variety of social programs as well as health supports. This model also offers elders continuity of care which, in turn, provides for a more stable environment and one that is conducive to developing deep relationships with fellow members of the community. As Jane Sinclair, Chair of the AdvantAge Ontario Board of Directors, stated, “they [Seniors’ Campuses]…are vibrant, age-friendly communities that promote friendships, social inclusion, mutual support, and positive aging.” Seniors’ Campuses give residents agency over their lives.

Not only do Seniors’ Campuses offer a vast array of benefits to their members, but the model also offers the government a cost-effective way to reduce the pressure on an already overwhelmed long-term care system. Members pay monthly fees to live on Seniors’ Campuses, which vary depending on the housing model they choose to reside in. Members are able to move from one model of housing to the next as their needs change. For example, if an individual was residing in an affordable housing unit and experienced a health deterioration, he/she could be transferred to assisted living. This integrated approach provides seniors with appropriate care and enables them to remain in the community and avoid unnecessary placement in long-term care homes for as long as possible. It is a model that encourages independence and allows seniors to maintain their dignity.

Thanks for reading… Have a wonderful day!

Suzana Popovic-Montag and Tori Joseph

 

27 Jan

Can Sleeping Too Little Affect One’s Capacity?

Suzana Popovic-Montag General Interest Tags: , , , 0 Comments

It is generally understood that, in order to execute a valid Last Will and Testament, a testator must meet the legal test for capacity. Drafting solicitors must remain especially vigilant when preparing a Will for an elderly client.

On October 16, 2013, we blogged on the correlation found between oversleeping and mental incapacity. Though the cause for the correlation was unknown, studies conducted by Columbia University and Hospital University of Madrid concluded that those who regularly oversleep might be more likely to develop Dementia. “Oversleeping” was classified as sleeping for nine or more hours every night.

Researchers funded by the National Institute of Health have found evidence that the reverse is also true when it comes to sleep: those already suffering from progressive neurodegenerative disorders, such as Alzheimer’s Disease, may experience more severe symptoms and a quicker decline as a result of chronic lack of sleep. Sleep patterns can affect cognitive ability and, in turn, the ability to execute a Will. These findings negate some cultural beliefs that “sleep is for the weak” and instead suggest that sleep is more important than we might want to believe.

Just as we cleanse our physical bodies at the end of each day, the brain also undergoes a process to cleanse itself of its “waste,” otherwise known as amyloid plaques. This detoxification process occurs while we are sleeping. Amyloid plaques are produced throughout the day and, like any other plaque that is built up, they can cause harm to our bodies when not properly removed. Amyloid plaques, specifically, have been linked to brain functioning and associated with Alzheimer’s disease. Without a proper night’s sleep, our brains are unable to eliminate these damaging toxins and thus cannot maintain optimal functioning.

Given the compelling evidence linking sleep patterns to possible cognitive decline, if you wish to remain capable of executing a Will, the importance of a good night’s rest cannot be overstated.

Thanks for reading! Have a great day!

Suzana Popovic-Montag and Tori Joseph

13 Jan

Is it Possible to Disinherit Your Estranged Children?

Suzana Popovic-Montag Litigation Tags: , , , , 2 Comments

In British Columbia (“BC”), there is a process known as wills variation, whereby a spouse or child of a testator can challenge the distribution set out in the will upon the death of the testator. In these will variation cases, the Court must balance the autonomy of the testator – to decide how to distribute his/her estate – with certain moral obligations that might be present. The BC legislation that allows for this equitable claim is unique.

The BC Supreme Court’s decision in the 2015 Kong v Kong (“Kong”) case confirmed that, although difficult given the ability to bring a wills variation claim, it is possible to disinherit your children in BC. Mr. Kong was survived by seven children, all of whom were adults, at the time of his death. Mr. Kong’s Will provided for the overwhelming majority of his estate to be left to his youngest son, thus disinheriting his remaining children. Four of Mr. Kong’s disinherited children initiated a wills variation claim in an effort to vary the Will in their favour. In order for the Court to consider variation, it must determine whether the reasons for an adult child’s disentitlement meet the criteria of “valid and rational.” The onus lies on those challenging a will to establish that there were no valid or rational reasons to justify the testator’s decision.

In BC, a testator’s moral obligation to his/her children does not necessarily require the testator to provide for an adult child where there has been estrangement, misconduct, or sufficient provision to the child in the testator’s lifetime. Satisfying one’s moral obligation does not require an equal distribution to all surviving children. In the Kong decision, Justice Sharma found inconsistent claims regarding the nature of the relationship between Mr. Kong and his children who brought the variation claim. Justice Sharma held that some of the disinherited children had been estranged from their father prior to his death. On an evidentiary note, Justice Sharma refused to limit the Court’s analysis solely to discussions between Mr. Kong and his lawyer when the Will was prepared. Instead, the Court engaged in an objective investigation into the relationship between each of the Kong children and their father. Upon reviewing the reasons found for the estrangement, Justice Sharma concluded that Mr. Kong had no moral obligation to provide for the children who had been estranged (and were at fault for this estrangement). As such, Justice Sharma upheld the father’s decision to disinherit two out of the four applicants. A five percent share of the estate was awarded to the remaining applicants.

The Kong case demonstrates that, even where a variation is justified, the Court will still give strong deference to the testator’s intentions as expressed in his/her will.

Thanks for reading!

Suzana Popovic-Montag & Tori Joseph

30 Dec

Reparations for Survivors, Their Heirs, and Their Estates

Suzana Popovic-Montag General Interest Tags: , , , 0 Comments

On December 2, 2020, we blogged on Germany’s recent decision to expand pension payments to spouses of Holocaust survivors who are now deceased. Under the amended criteria, spouses are entitled to this payment for up to nine months. Prior to this decision, pension payments expired upon the survivor’s death.

Deeply intrigued by this dark period in our relatively recent history and the effects it continues to have on the heirs and estates of survivors in our modern world, we have again chosen to focus our blog on Holocaust reparations – this time from the French government.

In 2014, France agreed to pay reparations, in the amount of $60 million to certain qualifying Holocaust survivors, their heirs and their estates (known as the “The 2014 Agreement”). This Agreement was proposed in response to a lawsuit initiated by non-French survivors who had been deported to death camps from France via S.N.C.F., which was a state-owned railway system. Survivors argued that S.N.C.F. was complicit with the Nazis’ premeditated murders during World War 2. France ultimately agreed to pay survivors who had been transported to concentration camps via S.N.C.F. reparations in exchange for recipients agreeing to renounce their right to sue.

The 2014 Agreement sought to distribute reparations to victims who had been largely ignored under prior agreements and settlements.

Former Ambassador and the State Department’s expert advisor on Holocaust issues, Stuart Eizenstat, assisted in negotiating this Agreement. As a result of the Agreement, forty-nine survivors received approximately $400,000 in reparations. Thirty-two spouses of survivors who had already passed on received up to $100,000 under this Agreement. Heirs and estates of deportees were also eligible for payment.

Holocaust survivors constitute a unique population of individuals who were robbed of the opportunity to inherit wealth.  Though reparations cannot make up for the suffering of the past, they represent a recognition of fault and soothe, for some, the pain of loss.

Thanks for reading!

Suzana Popovic-Montag & Tori Joseph

16 Dec

Section 16 of the Succession Law Reform Act: To Repeal, or Not to Repeal?

Suzana Popovic-Montag Public Policy Tags: , , , 0 Comments

We have previously blogged on the discussion between Ontario Attorney General, Doug Downey, and the Estates Bar regarding legal policy reform. This discussion occurred on August 6, 2020, and was facilitated by the Ontario Bar Association. Our post focused on virtual witnessing of wills as a result of Covid-19 and considered the possibility of making this provision more permanent.

The focal point of today’s post will be s. 16 of Ontario’s Succession Law Reform Act and whether it should be repealed.

Section 16 provides for the revocation of a will upon marriage. At the August 2020 meeting, many participants were in favour of repealing this provision. Both British Columbia and Alberta have already amended their legislation to repeal this exact provision. Proponents of legislative change associate this provision with the rise in predatory marriages. The devastating consequences resulting from a predatory marriage generally impact the vulnerable elderly and their heirs.

The rationale underlying the provision’s enactment dates back hundreds of years to a time where the father of the bride was required to pay a dowry to the groom. Revocation of a prior will was required in order to protect the bride from any previous obligations laid out in the groom’s will and to ensure a “clean slate.” There are concerns by some that a new spouse might not be protected if a prior will remains valid after marriage. For example, if a valid will is upheld at marriage, a current spouse might not inherit if he/she is not included in that will.

Section 16 is debatably antiquated and historically redundant as there are now additional statutes in place to protect a new spouse in the event of a death, including the Family Law Act. Furthermore, s. 58 of the Succession Law Reform Act allows a spouse of a deceased to claim appropriate and adequate support as a dependant. It is apparent that revoking a will upon marriage is not the only protection available for a subsequent spouse.

With the demographics in our society rapidly changing and the obvious need to protect those most vulnerable, now is as good a time as ever to reconsider the necessity of s. 16.

Thanks for reading!

Suzana Popovic-Montag & Tori Joseph

02 Dec

Pension Payments Expanded: A Small Win for Holocaust Survivors

Suzana Popovic-Montag General Interest Tags: , , 0 Comments

Holocaust survivor pension payments address a moral dilemma, not a financial dilemma. After bearing witness to the horrors of the Holocaust – one of the worst atrocities of mankind – survivors had to put back together the broken pieces of their lives. Upon losing everything, survivors were forced to rebuild from nothing.

Until recently, pension payments to Holocaust survivors expired upon death. The Claims Conference, an organization dedicated to attaining some measure of justice for Jewish Holocaust victims, negotiated with the German government to expand these payments. Over 75 years since liberation, many survivors have now passed on or are quickly advancing in age. Chairman of the Claims Conference, Julius Berman, is committed to ensuring comfort, care and dignity for survivors in their final years. As Berman so eloquently stated, “it remains our moral imperative to keep fighting as long as there are still survivors with us.”

As of July 2019, spouses of survivors are now entitled to receive pension payments from the German government for up to nine months after the survivor’s passing. Approximately 14,000 spouses are expected to be granted this payment retroactively, with a further 30,000 individuals qualifying. Additionally, there are several welfare organizations that offer a variety of services to Holocaust survivors, such as psychological services and in-home care, that will be receiving additional funding from the German government.

Germany also agreed to contribute to the Claims Conference Fund for Righteous Gentiles (non-Jews who assisted Jewish people during the war), which was established in 1963. This fund recognizes the selfless and heroic acts of non-Jewish individuals who endangered their lives and the lives of their families in order to save Jews. According to Claims Conference negotiator, Greg Schneider, there are roughly 277 Righteous Gentiles still alive who are in need of financial assistance.

Individuals who meet the requirements of an “eligible Holocaust victim” in accordance with German government guidelines, can apply to Claims Conference Compensation Programs.

Thanks for reading… Have a wonderful Wednesday!

Suzana Popovic-Montag & Tori Joseph

18 Nov

MAID Accessibility

Suzana Popovic-Montag General Interest, In the News Tags: , , 0 Comments

Dying with Dignity (DWD) Canada, a not-for-profit organization, has noted a rise in calls from Canadians inquiring about medical assistance in dying (MAID) since the start of the pandemic.

The individuals calling DWD are largely concerned about the prospect of dying an uncomfortable death from Covid-19. Since MAID is only available to a small group of individuals who meet the rigorous conditions set out in Canada’s assisted dying law, Helen Long, CEO of DWD Canada, urges people to complete an advanced care directive to ensure their end of life wishes are met. Advanced care planning advice, and specifically how it relates to Covid-19, can be found on the Dying with Dignity website.

Other DWD callers express concerns about the difficulty of accessing the healthcare system during the Covid-19 pandemic. These callers worry about whether they will be able to in fact access MAID programs when needed. For example, in March of 2020, some MAID services were shut down in Ottawa and Hamilton to prevent the spread of Covid-19 and to preserve health-care resources. However, other regions have deemed MAID to be an essential service and have implemented safety protocols to ensure adequate protection for clinicians conducting this service.

Some long term care homes reject MAID on religious grounds and, therefore, will not allow the services to be conducted on their property. It is clear that MAID has become increasingly difficult to access for many people.

Currently, Bill C-7 is before the House of Commons. Bill C-7 contains the government’s proposal to expand eligibility for assisted death. One way that the government seeks to do so is by modifying the current stringent requirement of a “reasonably foreseeable death.” Although Bill C-7 would maintain the general notion of a reasonably foreseeable death as a precondition to accessing MAID, it would establish more lenient eligibility requirements for those who are near death. Bill C-7 seeks to make MAID more accessible by alleviating some of the more burdensome conditions that presently need to be met.

Under the current assisted dying regime, 6,465 medically assisted deaths are expected in Canada in 2021. This legislation would enable almost 1200 more medically assisted deaths. These were the numerical predictions expected prior to the pandemic. The exact number of additional requests for MAID due to Covid-19 remains to be seen.

Thanks for reading … Enjoy the rest of your day.

Suzana Popovic-Montag & Tori Joseph

04 Nov

Economic Recession, Social Recession, or Both?

Suzana Popovic-Montag Health / Medical Tags: , , , , , 0 Comments

Just as an economic recession has serious ramifications for our society, so too does a social recession. A social recession can be described as a phenomenon whereby social bonds and human connection unravel the longer we are without interaction. Similar to an economic downturn, a social recession can have significant physical and psychological effects on people. Of particular concern to many is the effect that such a recession will have on the elderly, an already vulnerable population.

Restrictions in long-term care homes resulting from the Covid-19 pandemic have only magnified a deeper rooted pandemic of loneliness that was already in existence. The virus also shed light on an already strained and crumbling system. CBC Marketplace found that 538 of the 632 long-term care homes in Ontario were repeat offenders of abuse, inadequate infection control, inadequate hydration, unsafe medication storage, and poor skin and wound care. These homes were in direct violation of the Long-Term Care Homes Act and Regulations.

The importance of human connection cannot be underestimated. Julianne Holt-Lunstad, a professor of psychology and neuroscience at Brigham Young University, found that people with higher levels of social connection experience less inflammation (which is attributed to many chronic diseases) than those who are more isolated. Toronto long-term care resident, Devora Greenspon, although not infected with Covid-19, described her loneliness as “so deep it feels like a disease.”

Residents in Ontario’s long-term care homes have pleaded with the government to address the mass devastation caused by social isolation. It is crucial that elders and long-term care residents are protected from the spread of Covid-19. However, it is equally as important to halt the plague of loneliness from spreading any further. There must be a greater focus on the devastating effects of isolation on elders’ mental health as a healthy mind can often be the greatest weapon against disease. The inevitability of a social recession should not be overlooked.

Thanks for reading!

Suzana Popovic-Montag and Tori Joseph

21 Oct

Growing Concerns for our Aging Population

Suzana Popovic-Montag Power of Attorney Tags: , , , 0 Comments

Canada’s population is rapidly aging. With baby boomers constituting just over one quarter of our population, the percentage of elders in our society is rising at an alarming rate. In 2014, the percentage of seniors north of 65 was 15.6 percent of the population. By 2030 – in the next decade – seniors will make up 23 percent of the Canadian population. With this change in demographics, elder abuse (and financial exploitation in particular) has become somewhat of an epidemic.

Financial exploitation commonly occurs when an attorney for property abuses his/her power afforded by the Power of Attorney (“POA”) document. Executing a POA is a vital component of every estate plan. When properly drafted and with the appropriate understanding of rights, duties and obligations, a POA has the effect of protecting individuals and their heirs against future incapacity. When drafted improperly and without a clear recognition of duties and responsibilities, the consequences can be grave.

Toronto resident, Christine Fisher (“Fisher”), is all too familiar with the devastating impact that POA abuse can have on an individual’s financial situation. In 2016, Fisher was 94 and living independently in her own apartment despite suffering from the beginning stages of Dementia. Fisher ultimately executed a POA appointing an old colleague, Theresa Gardiner (“Gardiner”), as her attorney for property. In her role as attorney, Gardiner immediately moved Fisher from her apartment to a seniors’ residence – a decision that was not viewed favourably by Fisher’s family and long-time friend, Nancy Lewis (“Lewis”). In the coming months, Lewis discovered that Gardiner had been abusing the power granted to her under the POA by misappropriating Fisher’s funds. By breaching her fiduciary duty, Gardiner exacerbated Fisher’s financial situation and improved her own. In an attempt to justify her misconduct, Gardiner told CBC News that Fisher had gifted her the money. In July of 2019, Gardiner was charged with several counts of theft. Most of these charges were withdrawn by the Crown in November of 2019.

Unfortunately, the story of Christine Fisher is not an anomaly. It is a reflection of society’s tendency to overlook and ignore vulnerable elders. Given the substantial risks associated with appointing an inappropriate attorney, lawyers should remain vigilant to possibilities of incapacity, fraud and undue influence prior to creating a POA for a client. Recognizing the warning signs is the first step to protecting this vulnerable population.

Thanks for reading!

Suzana Popovic-Montag & Tori Joseph

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