Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.
Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):
- they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
The criteria do not feature any mechanism for providing advance consent to MAID. Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.
As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent. In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.
Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.
According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating. At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.
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Other blog entries that may be of interest:
Our blog has previously featured posts about the concept of aging in place. Survey results suggest that the vast majority (93% of respondents aged 65 or older) of Canadians wish to continue living at home for as long as possible as they age. Benefits of aging in place may include lower costs (relative to living in long-term care), increased comfort, slower advancement of memory loss, strengthening of social networks, and continued independence and self-determination.
For many, with old age comes physical limitations that may result in decreased mobility and expose seniors to an increased risk of accidents while living at home, whether they are living with or without the assistance of caregivers or other support, absent sufficient safety measures. We recently discovered a guide to making homes senior-safe, which is available online for free through the Senior Safety Reviews website.
The guide features the following:
- 34 practical tips to assist in preventing falls;
- Measures that may assist in the prevention of theft, elder abuse, burns and fires;
- Technology that can be used to promote at-home safety; and
- Preparing the home for extreme weather.
The guide reports that, notwithstanding the goal of many individuals to remain at home into old age, only 1% of homes are currently equipped to safely facilitate aging in place.
This user-friendly guide may be of assistance to older clients and supportive family members in allowing seniors to safely age in place.
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I think the coverage of George H.W. Bush’s recent funeral tweaked my interest in some of the things that make Canada unique. Once again, former Prime Minister Brian Mulroney was chosen to give a eulogy for a U.S. President (he spoke at the funerals for both Ronald and Nancy Reagan as well). And what a eulogy it was – personal, humorous at times and eloquent throughout.
The Globe and Mail described Mulroney as “emerging as something of the eulogist-in-chief for American commanders-in-chief.” That speaks very highly for Mr. Mulroney but also very highly for Canada. It’s clear that there was (perhaps still is?) a high level of respect for our country and the role we play in the world.
Aside from having a former Prime Minister who was clearly adept at fostering close international friendships, what else makes us unique? I think it starts with the country itself:
- We have about 20% of the world’s fresh water
- Almost one-third of the country is covered in trees – and we have 10% of the world’s forests
- We have the world’s longest coastline
- Along with the U.S., we share the longest demilitarized border in the world
We may not have the population size to match many other countries, but certainly have the physical size.
The quirky side
We also have character. Maybe that’s what the U.S. political elite love about us. Consider these:
- We love comfort: We eat more mac ‘n cheese than any other country in the world (I have no idea who measures this stuff)
- We’re sweet: One Canadian province (Quebec) makes more than 77% of the world’s maple syrup
- We’re inventive: Hawaiian pizza was invented by an Ontario man, not by the Hawaiians
- We’re procrastinators: We didn’t get our own flag until our country was nearly 100 years old
- We’re talkers: The famous Canadian interjection “eh”is listed in the Canadian Oxford Dictionary as a valid word. Who knew?
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In Canada a person generally has the freedom to leave their estate to whomever they choose; known as “testamentary freedom”. However, in many of the civil code countries of Europe, a portion of the estate must be distributed to legitimate heirs; known as “forced heirship”. In Portugal, legitimate heirs include the spouse, biological descendants, adopted children, and ascendants of the deceased. The reserved portion covers up to two thirds of the whole estate, with division of the estate generally as follows:
Spouse’s portion in absence of descendants or ascendants: 50%.
Spouse and Descendants: The reserved portion is two thirds; normally distributed per capita, but in any case the spouse gets a minimum of one quarter of the reserved portion (which results in one sixth of the whole estate).
Only Descendants: The reserved portion depends on the number of children. For one child it is 50%, for two or more it is two thirds.
Spouses and Ascendants: two thirds, of which two thirds are intended for the spouse and one third for the ascendants.
Only Ascendants: 50% for those of first degree, for further degrees one third.
In the case of an intestacy and no spouse, ascendant or descendant, the estate passes to the siblings and their descendants, in their absence to the family up to the fourth degree of kinship, and then finally to the State.
The testator’s freedom to leave the remainder of the estate after the reserved portion is not generally restricted except in some cases like: the deceased’s last treating doctor if the testament was written during the illness which caused the death, the priest of the community where he attended, or a curator, tutor, or administrator of the deceased.
If you are interested in further information on the topic of international inheritance we are pleased to assist, along with our lawyer colleagues in Lisbon Portugal.
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A recent survey commissioned by HomeEquity Bank suggests that the majority of older Canadians plan on staying in their homes as they age (otherwise known as aging in place) rather than downsizing and/or moving into assisted living or retirement communities. 93% of survey respondents aged 65 or older felt that it was important that they remain at their current home throughout retirement. 69% of them advised that their primary reason for wishing to remain at home was to maintain independence as they age.
The older respondents (75 years or older) advised that it was important to them that they remain in their current home to stay close to family, friends, and/or the community (51%) and that emotional attachment and memories were also contributing factors (40%).
In order to remain living at home as long as possible into retirement, advance planning in terms of finances and logistics may be necessary. A recent article appearing in Forbes suggests that the following steps, unrelated to financial planning, may be especially useful in facilitating successful aging in place:
- Maintaining social connections to avoid social isolation;
- Identifying who will help, whether family members, friends, or public services;
- Planning for the transition as needs change over time and identifying the resources and services available in the community;
- Preparing the home to accommodate increased needs (for example, by installing grab bars and a chair in the shower);
- Reviewing and updating the plan to age in place as may be necessary (due to a change in health, available support, or financial constraints).
Notwithstanding one’s plans to continue living at the family home, increasing longevity, a lack of liquidity, unrealistic expectations in terms of income sources after retirement, and the high cost (or local inaccessibility) of caregiving services may contribute to a decision to sell the home and relocate earlier than intended.
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It is not uncommon for Canadian estate trustees to make distributions to beneficiaries living in the U.S. In doing so, the U.S. Customs and Border Patrol (the “US CBP“) could be involved in a myriad of ways.
A recent story from CBC News is an example of what can go wrong if estate trustees are not aware of their US reporting obligations. An estate trustee in Ottawa mailed a bank draft worth $500,000.00 to a beneficiary in the U.S. U.S. border officials seized the bank draft because it was mailed without filing the appropriate customs declaration form. Almost a year later, the bank draft is still held at the border while the unfortunate beneficiary is sick and in need of money for his medical bills.
According to the U.S. Customs and Border Protection website, any time money exceeding $10,000.00 is sent to the U.S. from a foreign country, the sender is required to file a “Report of International Transportation of Currency or Monetary Instructions” (FinCEN Form 105) with the CBP before the money is sent. This applies regardless of whether the sender is acting personally or on behalf of another legal entity. This applies to money in the form of coins, currency notes, travellers checks, money orders, etc. This also applies to money sent by mail, courier, personal delivery, etc.
However, this particular US reporting requirement does not apply where the method of transfer does not involve physically transporting money over the border, such as wire transfers through banking institutions. If a wire transfer is used, the bank is responsible for satisfying the necessary reporting requirements.
In course of sending money worth $10,000.00 or more from Canada, there are corresponding Canadian customs requirements as well. If money is sent by mail, be sure to visit a Canada Post location and inquire about the necessary requirements. The applicable reporting form must be filled out and enclosed within the envelope or package and a copy of the same form must be submitted to the Canada Border Services Agency. If money is sent by courier, the courier is responsible for filing another reporting form while the individual sender is still responsible for providing the courier with the general reporting form.
Like the US CBP, Canada Border Services Agency has the authority to seize the funds and charge penalties if the Canadian reporting obligations are not satisfied.
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36 representatives met at 3 conferences in Charlottetown, Quebec and London between 1864 and 1867 to discuss uniting New Brunswick, Nova Scotia and the Province of Canada, which was composed of Canada East and Canada West (which would later become Quebec and Ontario). The Dominion of Canada was born on July 1, 1867. An important date for Canada is March 8, 1867. On this day the British House of Lords gave final reading to the British North America Act, and Royal Assent was given on March 22 and proclaimed March 29, to be effective on July 1, 1867.
By the numbers Canada was founded by:
19 lawyers: Adams George Archibald, Alexander Campbell, George-Étienne Cartier, Edward Barron Chandler, James Cockburn, Robert Barry Dickey, Charles Fisher, John Hamilton Gray, Thomas Heath Haviland, William Alexander Henry, Hector-Louis Langevin, John A. Macdonald, Jonathan McCully, Peter Mitchell, Oliver Mowat, Edward Palmer, William Henry Pope, John William Ritchie, Frederic Bowker Terrington Carter.
9 businessmen: Jean-Charles Chapais, George Coles, Alexander Tilloch Galt, William Pearce Howland, John Mercer Johnson, Andrew Archibald Macdonald, Ambrose Shea, William Henry Steeves, Robert Duncan Wilmot.
4 journalists: George Brown, William McDougall, Thomas D’Arcy McGee, Edward Whelan.
2 doctors: Étienne-Paschal Taché, Charles Tupper.
1 pharmacist: Samuel Leonard Tilley.
1 military officer: John Hamilton Gray.
72 resolutions established to provide Canada with a template for unification.
50 of them were written by John A. Macdonald according to Thomas D’Arcy McGee.
Happy Canada Day!
While digital assets constitute “property” in the sense appearing within provincial legislation, the rights of fiduciaries in respect of these assets are less clear than those relating to tangible assets. For example, in Ontario, the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of property and estate trustees, respectively, are authorized to manage the property of an incapable person or estate, but these pieces of legislation do not explicitly refer to digital assets.
As we have previously reported, although the Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act in August 2016, the uniform legislation has yet to be adopted by the provinces of Canada. However, recent legislative amendment in one of Ontario’s neighbours to the west has recently enhanced the ability of estate trustees to access and administer digital assets.
In Alberta, legislation has been updated to clarify that the authority of an estate trustee extends to digital assets. Alberta’s Estate Administration Act makes specific reference to “online accounts” within the context of an estate trustee’s duty to identify estate assets and liabilities, providing clarification that digital assets are intended to be included within the scope of estate assets that a trustee is authorized to administer.
In other Canadian provinces, fiduciaries continue to face barriers in attempting to access digital assets. Until the law is updated to reflect the prevalence of technology and value, whether financial or sentimental, of information stored electronically, it may be prudent for drafting solicitors whose clients possess such assets to include specific provisions within Powers of Attorney for Property and Wills to clarify the authority of fiduciaries to deal with digital assets.
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Other blog posts that may be of interest:
There’s no shortage of bad news, and 2018 is starting off much the same. So how about focusing on some of the positives? There’s a lot of research showing that a focus on the things we’re grateful for is a key to greater happiness. Even the Harvard Medical School agrees.
So, let’s focus on the big picture, as Canadians. What are we grateful for? Here are five things you may want to ponder – and I’m sure there are many more:
- Democracy: We have to put this as number one. We are not beholden to a dictator or total state control. We vote in fair elections and we choose our leaders and lawmakers. Millions of people don’t enjoy this privilege. Whatever your political leanings, let’s be grateful for the ability to express our views freely.
- Water and energy: We have some droughts and some floods, and there are many legitimate environmental concerns, but we can drink from our taps and plug in our devices, and know that both water and energy are plentiful. So many in the world can’t say the same.
- Health care: It’s not a perfect system, but Canada delivers high quality, affordable health care to all. Good health is key to a good life. Our health care system helps deliver it, to rich and poor alike.
- Proximity to the United States: Yeah, I know, a bit of a controversial topic right now. But it’s kind of nice living beside the world’s largest and most innovative economy. Don’t let the political climate blind you to the fact that we benefit a huge amount by our trading relationship with our neighbour. Of course, it’s actual “weather” climate helps too – January in Palm Springs or Miami is awfully nice for those who can travel there.
- No inheritance tax: Hey, this is an estates blog after all. Okay, this may not be a “top 5” gratitude item, but as estates professionals, this is one we’re grateful for. You can discuss the political merits of inheriting wealth, but inheritance taxes only serve to promote aggressive planning to avoid them. Our efforts are better spent building wealth rather than finding ways to protect it. Pay some capital gains taxes, fair game. But let’s pass on the wealth and put it to good use!
And if you want a slightly more light-hearted look at the benefits of being Canadian, CNN has 10 that you may want to consider.
Thank you for reading … have a great day,
For many Canadians, one or more life insurance policies represent an important component of an estate plan. If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.
The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide. Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).
With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance. The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.
As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old. Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families. This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:
…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.
The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide. They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.
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Other blog posts that may be of interest: