Tag: Age

27 Mar

 A cure for “ageist” thinking? It may not be needed

Suzana Popovic-Montag Estate & Trust, Estate Litigation, Ethical Issues, Uncategorized Tags: , , 0 Comments

It’s taken decades, but we’re slowly coming to terms with a few of the “isms” in our culture – racism and sexism being two obvious ones. We can add discrimination based on disability and sexual preference as two others.

My question, thought, is does “ageism” belong in the same category? Ashton Applewhite, the author of This Chair Rocks: A Manifesto Against Ageism, believes it does. This website sets out her thesis – and the Globe and Mail provided an excerpt recently.

Applewhite is thorough – and has certainly done her research. She is also getting a lot of positive press. But not everyone is entirely convinced of everything she says.

How bad is it?

Applewhite defines ageism as follows:

Discrimination and stereotyping on the basis of a person’s age. We’re ageist when we feel or behave differently toward a person or a group on the basis of how old we think they are.

So, ageism affects both the young and the old. One interesting idea is her move to change words like “adolescents” and “seniors” to “youngers” and “olders.” I like the way this subtle shift in language (to my ear anyways) eliminates a lot of the baggage associated with either end of the age spectrum.

Age discrimination certainly exists – we can all get impatient by slow walkers or dismiss the ideas of olders too readily. And this is an area we should definitely continue to work on, to ensure that youngers and olders are respected as individuals at every stage. But much of Applewhite’s focus is on how we shouldn’t stereotype ourselves as we get older – the negative talk that we tell ourselves (like being too old to dance, too old to ski, and too old to attend a political rally). And that’s where some aren’t sure her arguments have merit.

Do we limit ourselves based on our own notion of age? Or do our individual conditions and state of mind do that for us?

Applewhite brings out the stats on how able and happy those over age 65 are, and encourages us to google the U-curve of happiness as evidence. Here it is, courtesy of the Washington Post:

 

 

As multiple studies have shown, we are happiest at the beginning and end stages of life. So this begs the question: if the curve clearly shows greater happiness as we move through our 60s, 70s, and 80s, how much of a negative impact is ageism really having? And how much self-ageist thinking is actually taking place?

We seem to be doing a pretty good job of aging happily. Personally, I’ve been relying on my own mind and body, not my age, when I make decisions to add or subtract things from my life. I think most people are doing the same.

Thanks for reading … Have a great day!

Suzana Popovic-Montag

22 Feb

Age and Testamentary Capacity

Suzana Popovic-Montag Capacity, Wills Tags: , , 0 Comments

“Testamentary capacity” is a term with a particular legal meaning: whether an individual has the necessary cognitive abilities to be capable of making a valid will. The classic statement of the test for testamentary capacity, which remains the most frequently applied version of the test, is found in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects;  shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties;  that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.

Ontario law presumes adults are capable. The Succession Law Reform Act (the “SLRA”) and the Substitute Decisions Act, 1992 (the “SDA”) codify this common law presumption. As a general rule, in Ontario a testator must be 18 years of age before he or she has the legal capacity to make a valid will. Section 8(1) of the SLRA, however, states:

8. (1) A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the person,

(a) is or has been married;

(b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except that such a will is not valid unless and until the marriage to the named person takes place;

(c) is a member of a component of the Canadian Forces,

(i) that is referred to in the National Defence Act (Canada) as a regular force, or

(ii) while placed on active service under the National Defence Act (Canada); or

(d) is a sailor and at sea or in the course of a voyage.

It is a fundamental principle of elder law that a practitioner cannot assume capacity is an issue merely because of age. According to section 2 of the SDA, everyone aged 16 or older is presumed capable of making decisions about his or her personal care and everyone aged 18 or older is presumed capable of making decisions about his or her property. These presumptions do not expire or change for the elderly. A 100 year old is presumed to be capable, just the same as a 20 year old would be.

The most common cases in which testamentary capacity is an issue are where a testator executes a will late in life, while suffering from progressive dementia. The question in these cases is whether the mental capacity of the testator had deteriorated to an extent that deprived him or her of testamentary capacity.

In some cases, a person can be legally incapable of making a will at any time from birth to death. Congenital conditions, conditions that strike early in life, or catastrophic accidents occurring in childhood can deprive an individual of capacity before he or she attains the age of 18. In these cases, the property of these people will pass on intestacy, as guardians for property in Ontario cannot make a will on behalf of the person whose property they manage. Some jurisdictions, such as England and some Australian states and territories, allow for people who lack testamentary capacity to make valid wills. The only Canadian jurisdiction to allow such wills is New Brunswick, pursuant to the Infirm Persons Act.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Lest We Forget: Assessing Testamentary Capacity

Testamentary Capacity and Suicide

Psychological Autopsies and Testamentary Capacity

01 Apr

Life was Easier Before the Digital Era…

Hull & Hull LLP Estate & Trust Tags: , , , , , , , , , , , , , , , , , , , , , , 0 Comments

In the days prior to the evolution of the Internet, planning and administering an estate was relatively simple as the physical belongings of the deceased could be carefully sorted through, packaged, and divided according to the Deceased’s testamentary document or the applicable legislation.

In the days since the  Internet has become a common household tool, planning and administering an estate has not been so easy. In a study commissioned by Remember A Charity, The Dying in a Digital Age, it was discovered that four in five people own digital assets, but only nine per cent have considered how these will be distributed upon their death.

According to the study, the nation’s digital music collection is worth an estimated £900 million alone.

Three quarters of those surveyed for the study indicated that their digital music and photo collections had strong sentimental value, while eight out of ten said their digital assets were financially valuable.

Rob Cope, director of Remember A Charity said: ”Bank accounts, music and photograph collections are increasingly stored online…meaning families will wave goodbye to a small fortune if details are not passed on.”

There is now an entire cyber existence that both the Deceased and Trustees need to turn their mind to when planning or administering an Estate. For instance, what will become of Facebook, Twitter, Flickr and PayPal accounts? One easy solution is to subscribe to a website called Legacy Locker. Legacy Locker was created in 2009 and it maintains a master list of user names and programs for online bank accounts, social networking sites and document repositories. 

In the digital era, it is important that we consider and make arrangements for how our digital assets will be distributed, and for estate planners, it may be just as important that you consider including in your questionnaire or checklist, a question that forces a client to turn their mind to consider their digital assets. 

Thank you for reading, and have a great weekend.

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

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