The job of being an attorney for personal care for an incapable person is not an easy one. The attorney often has to make difficult decisions regarding an incapable person’s medical care and treatment, personal care, food, clothing, and shelter. A particularly difficult decision that can arise in the case of older adults is the decision of whether an older incapable person should be placed in a retirement or long-term care home.
I recently came across a decision that considered a personal care attorney’s decision to move his mother, Ann, into a long-term care facility. As set out in Corbet v Corbet, 2020 ONSC 4157, prior to the move, Ann had been living with her personal care attorney’s son (Ann’s grandson), and his spouse. The personal care attorney lived in the USA. The grandson and spouse were the defendants to an action brought by the personal care attorney, and the defendants had brought the motion that was dealt with in the decision. The motion sought an order that Ann return to live with the defendants.
The Corbet decision discussed the powers and duties of an attorney for property, as governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 66 of the SDA provides that a personal care attorney must exercise his or her powers and duties diligently and in good faith. If the attorney knows of prior wishes or instructions of an incapable person, they shall make their decision in accordance with those prior wishes or instructions. If the attorney does not know of a prior wish or instruction, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the incapable person’s best interests. Although making a determination of what is in the incapable person’s best interests can be difficult, the SDA does set out the factors that the attorney must consider, as follows:
- the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
- the person’s current wishes, if they can be ascertained; and
- the following factors:
- (i) Whether the guardian’s decision is likely to,
- improve the quality of the person’s life,
- prevent the quality of the person’s life from deteriorating, or
- reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
- (ii) Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
- (i) Whether the guardian’s decision is likely to,
Ultimately, the court determined that it was not prepared to grant the order sought by the defendants. Some of the factors that were determinative included the following:
- Ann had entrusted her only son as her attorney for personal care.
- The court should not attempt to micromanage an attorney’s day-to-day handling of an incapable person’s affairs unless there is clear evidence the attorney is not acting in good faith.
- Before making the decision to move Ann to the long-term care facility, the attorney consulted with Ann’s family doctor, and had a comprehensive assessment of the defendants’ home done by the LHIN case manager.
- Although Ann had expressed that she wanted to “go home”, the court found that Ann perceived her home as the home she had shared with her late husband, and not the defendants’ home.
- There was no evidence that the personal care attorney failed to consider the best interests criteria as set out above.
- There were allegations that the defendants had mistreated or neglected Ann, and that they had misused or misappropriated her money. As a result, it remained to be determined whether they were “supportive family members” with whom the attorney has a duty to consult under the SDA.
Attorneys for personal care would be well-advised to carefully consider their decisions, in light of the guidelines set out in the SDA, and to document their considerations in making decisions on behalf of an incapable person.
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This week on Hull on Estates, Noah Weisberg and Sydney Osmar discuss Notices of Objection, Rule 25.11, and the court’s decision in Dessisa and Wolde v Demisie.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
Sometimes there is a grey area when it comes to a person’s loss of capacity, and the time when his or her attorney for property first began to act on an incapable’s behalf. In such a situation, it can be difficult to determine the starting date for an attorney’s fiduciary accounting period.
The recent decision of The Public Guardian and Trustee v Willis at al, 2020 ONSC 3660, dealt with this kind of situation. One of the issues was whether the respondent should be required to pass his accounts for the period before he became the attorney for property for his mother, Mrs. Willis.
The respondent was his mother’s only living child, and was acting as her attorney pursuant to a power of attorney for property dated May 2, 2018. Mrs. Willis was assessed as incapable of managing her property in September 2018, but the decision notes that she had been “clearly suffering from some cognitive deficits prior to June 2018”.
The Public Guardian and Trustee (the “PGT”) sought to have the respondent provide an accounting back to January 1, 2015, because the respondent had arranged several mortgages on his mother’s behalf in that period. The respondent, however, only agreed to pass his accounts starting from May 2, 2018 when he became his mother’s attorney for property. One of the main reasons that the respondent did not want to pass his accounts prior to that period was due to the expense, because it was clear that Mrs. Willis was insolvent, and the respondent would likely have to personally bear the costs of passing his accounts. The PGT clarified during the hearing that it was not seeking court format accounts for the period from 2015-2018, but only “justifiable explanations of money coming in and out of his mother’s RBC account and how mortgage advances were spent plus all relevant disclosure.”
The court found that the respondent had assisted his mother with paying bills and arranging mortgages prior to the time that she was assessed as incapable. It was also noted in the decision that there was “no doubt” that even while Mrs. Willis was capable, she was unsophisticated, vulnerable, and relied on the respondent. The respondent also had access to his mother’s bank account before January 1, 2015.
The court held that, even if an individual is not specifically appointed in a fiduciary role (such as an attorney) one must look at the types of duties that the individual was carrying out to determine if they were acting in a fiduciary capacity. On this basis, the court found that the respondent had been acting as a fiduciary for Mrs. Willis for some time, and determined that he should provide detailed explanations of financial transactions upon the PGT’s request from January 1, 2015 to May 1, 2018 (in addition to the passing of accounts to which the respondent had consented starting from May 2, 2018).
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In response to issues arising in the execution of Wills during the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney. Ontario Regulation 129/20. made under the Emergency Management and Civil Protection Act provided that the requirement that a testator or witness be present in each other’s presence for the making of a Will or Power of Attorney may be satisfied by means of audio-visual communication technology, with certain restrictions. See our blog on the virtual witnessing of Wills and Powers of Attorney, here.
Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act. The extension is for a period of 30 days after the Order is continued, subject to further extension.
The new Order, Ontario Regulation 129/20 formerly made under the Emergency Management and Civil Protection Act, but now continued under the Reopening Ontario Act can be found here.
The Reopening Ontario Act received Royal assent on July 21, 2020 and came into effect on July 24, 2020.
The power to extend or amend an Order ceases on the first anniversary of the day orders are continued (ie. July 24, 2021).
This would mean that the virtual witnessing of Wills and Powers of Attorney is extended until August 23, 2020, with the government having the power to further extend the provisions.
We will keep you posted.
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A recent decision of the Alberta Court of Queen’s Bench highlights the importance of carefully reviewing settlement agreements prior to their execution.
In Anderson Estate (Re), 2020 ABQB 428, the Alberta Court of Queen’s Bench revisited a settlement that had been negotiated during a judicial mediation.
Mr. Anderson had left a Last Will and Testament executed roughly one month prior to his death that directed that the residue of his estate be distributed to his three children, who were the parties to the litigation. The Will addressed certain advances made to his children during his lifetime, the disposition of real property, and declared the testator’s intent that the parties be treated equally.
One son, who later brought the motion with respect to the interpretation of the agreement, had previously disclaimed real property gifted to him under the Will because the value assigned to the property in the Will itself was significantly higher than the appraised value of the property (with a discrepancy of $2 million), such that he would take a correspondingly lower distribution from the residue of the estate to reflect his acceptance of the gifted property. The judicial mediation process had been initiated with the intention of resolving interpretation issues in respect of the Will arising from the son’s disclaimer of the property. The terms of the Will and the settlement agreement were not straightforward, but the settlement provided in part that the son would receive at a value of $4 million a different property than that bequeathed to him under the Will that he had disclaimed.
Pursuant to the terms of the settlement agreement, the matter returned to the case management judge for the determination of its proper interpretation. The son sought an interpretation of the agreement that provided that he had substituted his receipt of one property for the other at a notional cost corresponding to advances tied to the first property.
Justice Jones reviewed the law in general relating to ambiguities appearing in contracts, such as the settlement agreement that the parties had executed (at paragraphs 35 through 40, briefly summarized below):
- true legal ambiguity arises where a phrase is reasonably susceptible on its face to more than one meaning;
- courts can consider surrounding circumstances that include everything that affected the language of the document from the perspective of a reasonable person;
- extrinsic evidence, however, is intended to serve “as an objective interpretative aid to determine the meaning of the words the parties used”, with limitations set out by the Alberta Court of Appeal in Hole v Hole, 2016 ABCA 34;
- the goal of the courts is to give effect to the objective intentions of the parties, rather than to “second-guess the contract”;
- even in the absence of ambiguity, a judge is to consider relevant surrounding circumstances in interpreting the contract.
The judge found that the settlement agreement was not susceptible to more than one meaning, stating as follows (at para 84):
A retrospective determination that one entered into an agreement on terms less commercially favourable that one now thinks should have prevailed does not evidence ambiguity.
This decision may serve as a reminder to take care in ensuring that the meaning of a settlement agreement is properly understood by all parties and clearly set out without room for ambiguity. Remaining silent on certain points that should properly be addressed during the dispute resolution process may limit the rights of the parties to pursue them, even where the settlement agreement will otherwise lead to the distribution of an estate that may be perceived as unfair.
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Few would have the audacity (or the poor judgment) to perform surgery or fly an airplane without requisite training. The hero of The Simpsons, Homer, (a sad example of his namesake), can often be seen, rather comically, making errors on the job at the Springfield nuclear power plant – and yet there is nothing funny, in real life, about an untrained nuclear technician staring down a crisis. Our world is no longer one in which most people provide all their wants for themselves; instead, trades are highly specialized. Lawyers, for instance, will not typically build their own houses – most, indeed, would not know how to build their own tables. There is temptation, however, in self-sufficiency: one may save money in cutting one’s own hair and gain pride in cooking one’s own meals; and in case of failure, one may always pay one’s expert barber to salvage one’s botched haircut and scramble to one’s favourite restaurant to relieve one’s palate.
Whereas the consequences of conducting surgery or flying an airplane without training are readily apparent to the imagination, the risks associated with self-representation in court can be deceiving. Some think they are – or truly are – qualified to argue their own cases if they do some private research, study the procedures and access free legal resources at their disposal. They may find the endeavour exciting, a personal rite of passage or a challenge from which they may grow. It is a sad truth, as well, that many self-represented litigants simply do not have the financial means to afford legal counsel. Options available to litigants of more modest means – such as legal aid, pro bono and hiring a lawyer on contingency – are often imperfect (and, alas, sometimes unattainable), but they may be preferable to going into the legal fray alone. In any case, Bristol v. Bristol,  O.N.S.C. 1684 (“Bristol”), is a stirring instance of what may go wrong with respect to legal self-representation.
The facts in Bristol are as follows: the matriarch of the Bristol family, Elizabeth, passed away on December 6, 2016, survived by ten children; in 2002, she executed a will in which she distributed her estate equally amongst the ten children; in 2004, she left another will by which she disinherited nine of the children and left her entire estate to Berry, the tenth child. Her stated purpose for disinheriting the nine others was that she had assisted them sufficiently throughout their lives.
On December 30, 2016, one of the disinherited children, Stephanie, filed a Notice of Objection, on behalf of herself and four of her siblings, alleging incapacity and undue influence with respect to the latter will. Berry filed his Notice to Objector on July 18, 2017, and then Stephanie filed a Notice of Appearance on July 25, 2017. After almost two years, during which time Stephanie was allegedly waiting for Berry to “take a step in the probate proceeding”, Stephanie brought a Motion for Directions. This was on April 23, 2019. The Court indicated that she should issue an Application within 45 days but without prejudice to Berry bringing a motion to dismiss on the grounds that the Application was statute-barred, for sections 4 and 5 of the Limitations Act prohibit a proceeding from commencing more than two years after the day on which the claim was discovered.
In its decision, the Court found that the steps Stephanie had taken, namely filing the Notice of Objection and Notice of Appearance, did not commence a proceeding; the former is merely a “caveat” or “caution”, not a proceeding, and the latter does not institute proceedings. She needed to issue an Application. It was next determined that the date of discoverability was either December 6, 2016 (the date of death) or at the latest December 30, 2016 (the date of the Notice of Objection), and that, therefore, the two-year limitation period had expired. As a last resort, Stephanie argued that she was seeking declaratory relief and that no limitation period thus barred her. The Court decreed that “will challenges cannot be framed as declaratory relief”.
There was sympathy for Stephanie’s position, but the Court declined to make an exception for her merely because she was self-represented:
“The Applicant insisted that because she was self-represented and because the Respondent had taken no steps, she was forced to bring a Motion for Directions in April 2019. It was only on the motion date that she learned that she was required to actually issue an Application. While all of this is unfortunate, it does not permit the Applicant to escape the presumption in ss. 4 and 5 of the Act.”
In consideration of Stephanie’s position, however, the Court opted not to order costs for Berry, to which he would have been entitled “in normal circumstances”.
In conclusion, we may finish with three observations. Firstly, as Berry won the case, the Court may have awarded costs against Stephanie. As was mentioned in the decision, estates litigants may have costs awarded against themselves personally – the estate no longer by necessity absorbs the legal costs for all parties. Secondly, had Stephanie hired counsel, it is likely that this procedural error would have been avoided and the will challenge determined on its merits. Engaging counsel would have perhaps carried greater financial risks, but the chance of gain (winning the case, settling) would have also sweetened the prospect. Lastly, Bristol is another lesson that litigants, both trained and untrained, must beware of time, and the limitations it summons, for it can be a stern and unconquerable foe.
Ian Hull & Devin McMurtry
Life insurance can be an important part of an estate plan, be it taken out to fund payment of anticipated tax liabilities triggered by death, to assist in supporting surviving family members, or to equalize the distribution of an estate within the context of the gift of an asset of significant value (such as a family business) to one child to the exclusion of another, who can be designated as beneficiary of the policy.
In a time when many Canadians are facing their mortality and taking the pause from normal life as an opportunity to review and update estate plans, many Canadians are turning their minds to other aspects of estate planning, including supplementing an estate plan with life insurance. A recent Financial Post article suggests that life insurance applications have doubled during the pandemic, as more Canadians take steps to plan for the unexpected during this period of uncertainty.
At the same time, premiums for new permanent life insurance policies have increased by as much as 27%. While term life insurance policies may remain a more affordable option, they too are anticipated to become more expensive, with upcoming premium increases of up to 20%. The increase in premiums has been linked to lowering interest rates and restrictions to the investment options available to insurance companies.
Other changes to life insurance during the pandemic include the exclusion of the standard medical examination required in order to obtain some types of coverage. The maximum coverage offered by many providers without a medical exam has increased to reflect limitations to the ability for applicants to safely attend an in-person examinations. For other providers and types of plans, medical examinations are simply on hold.
Lastly, insurance companies have updated intake questionnaires to include COVID-screening questions. If an applicant is experiencing potential symptoms, they may be required to wait two weeks before taking out the policy, but are not typically ineligible from coverage altogether. Some insurers, however, are no longer offering new coverage to seniors or others who are at a higher risk of complications during the period of the pandemic.
One life insurance provider has already doubled its projected COVID-19-related payouts during 2020 from the figures it had released earlier this year. While there may have been changes to certain eligibility requirements and the cost of life insurance, it remains a suitable estate planning tool for many Canadians.
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Many parts of the world remain under some degree of lockdown due to the COVID-19 pandemic. For older adults who may have limited access to assistance or company outside of immediate family during the pandemic, and/or whose transition to long-term care may have been delayed as a result, temporary relocation to live with supportive family members may be a suitable option.
As our readers know, inheritance tax is payable in respect of the assets of estates located in a number of jurisdictions, which do not include Canada. In the United Kingdom, for example, an inheritance tax of 40% is charged on the portion of an estate exceeding a tax-free threshold of 325 thousand pounds (subject to certain exceptions).
One way that some families choose to limit inheritance tax is to gift certain assets, in some cases a family house, prior to death, such that its value will not trigger the payment of inheritance tax. In the UK, if an asset is validly gifted at least seven years before death, inheritance tax will not be payable on the asset. However, where the donor of the gift reserves the benefit of the property – for example, if he or she continues to live at real property gifted to another family member – the gift will not be valid for the purposes of inheritance tax calculations.
A recent news article highlights the risk that older individuals in the UK who move back into previously gifted property during the pandemic may lose the benefit of potential inheritance tax exclusions by falling under the “gift with reservation of benefit” exception as a result of benefitting from continued occupation of the gifted property. While this risk may not outweigh the benefits of obtaining family support, it is a factor that a family may wish to consider as part of a decision to alter living arrangements.
Approximately 600 gifts have failed in the past several years, triggering up to 300 million pounds in inheritance tax in the UK. It is certainly possible that these figures will continue to increase as a result of shared family accommodations during the pandemic.
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When a claim is being brought by or against an estate or a trust, who are the proper parties?
Rule 9.01 of the Rules of Civil Procedure provides that a proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties.
There are exceptions to this Rule. Beneficiaries must be included as parties where the claim is:
- to establish or contest the validity of a will
- for the interpretation of a will;
- the removal or replacement of an executor, administrator or trustee;
- against an executor, administrator or trustee for fraud or misconduct; or
- for the administration of an estate or the execution of a trust by the court (ie, under Rule 65).
Where beneficiaries must be named as parties, the failure to do so may be “fatal” to the proceeding. In Blum v. The Queen, 1998 CanLii 425 (TCC), the applicant challenged the validity of a trust. The beneficiaries were not named. Applying similar rules under Alberta’s Queen’s Bench Rules, the court stated “The failure to do so [to name the beneficiaries] is fatal to the wife’s attach on the trust.” It should be noted that under the Alberta rules, beneficiaries to a trust must be named as parties to a proceeding to establish or contest the validity of “a will or trust”. Ontario Rules do not require that the beneficiaries of a trust be named as parties (as opposed to beneficiaries under a Will). However, applying the logic in Blum, it may be advisable to do so. In Blum, the court stated that it would be reluctant to rule on the validity of a trust without the beneficiaries being represented in the proceeding.
Thus, the executor, administrator or trustee is a necessary party to a proceeding by or against an estate or trust. Under Rule 9.01(3), if any executor, administrator or trustee does not consent to be joined as a plaintiff or applicant, they are to be made a defendant or respondent.
The beneficiaries, however, except in the limited exceptions noted, are not necessary parties. However, while certain proceedings may be brought without naming the beneficiaries as parties, there is nothing that prevents them from being named. In Milner Investors Inc. v. Eisen, 2019 ONSC 5911 (CanLII), the court held that while they do not need to be named as parties, “There is nothing that precludes the pleading from naming the beneficiaries as plaintiffs.”
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I learned about Blue Zones recently through Zac Efron’s new Netflix travel show, Down to Earth with Zac Efron. Episode 4 brings Zac and the audience to Sardinia where Zac meets with Dr. Giovanni Pes, nutritionist and medical statistician, and Dr. Valter Longo, bio-gerontologist, to discuss their research on the centenarians who live there. Blue Zones are regions of the world where people live much longer on average than everywhere else. This concept was coined by Dan Buettner and there are five Blue Zones in the world:
- Sardinia, Italy
- Okinawa, Japan
- Loma Linda, California (side note: California is also home to some of the world’s oldest-known living trees)
- Nicoya Peninsula, Costa Rica
- Icaria, Greece
According to Wikipedia, these Blue Zones have the highest rates of centenarians (i.e. people age 100 or above), and the people who live there suffer a fraction of the common diseases that ails the rest of the world and they enjoy more years of good health.
During the episode, Zac also visits a local woman who was born on April 15, 1920. She was 98 years old when the episode was filmed. Her husband had lived to 103 years old before his passing. According to Dr. Longo, it is extremely rare to have a couple with such longevity. Thereafter, Liliana was asked to do a cognitive test that one-third of centenarians or people with dementia will have trouble with, but Liliana does this with flying colours by accurately drawing the numbers on a clock and overlapping shapes on camera.
Liliana’s test was administered in her native language. In North America, the Montreal Cognitive Assessment (also known as the MOCA) is commonly administered to seniors as a screening tool for cognitive impairment like dementia. The MOCA is in the news recently as a result of Donald Trump’s interview with Chris Wallace on Fox News Sunday. Trump didn’t actually identify the exact cognitive test involved but he was proud to have “aced” the test.
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