Tag: Estate Planning Advice
Estate planning lawyers have both the privilege and the responsibility of providing guidance and advice to clients while they are at key stages in their lives. A good lawyer’s role involves turning a client’s mind to the future and planning for turbulent times before they arise. As one grows old and the risk of serious illness increases, it is important to consider difficult medical decisions that will need to be made, and the impact those decisions might have on your loved ones. Lawyers can help in this preparation, for example with naming a substitute decision-maker who can help direct doctors when the patient becomes incapable, as well as by drafting advanced care directives that lay out the wishes of the patient regarding treatment of serious illness and the extent that life-prolonging measures should be used. While such “advanced care directives” have no legal standing in Ontario, they are still important in that they can provide crucial guidance to decision-makers and medical practitioners when drafted correctly. On the other hand, they could be confusing to decision-makers and hinder medical professionals when drafted in an inflexible manner.
The Lawyer’s Role
Firstly, the language of these directives should be directed to the patient’s decision-maker, and not to the medical practitioner. They should be drafted as advice and guidance to the decision-maker, and not as rigid rules that a medical professional might feel obligated (but not legally compelled) to follow. This is crucial as any lawyer drafting such a document should appreciate the “shared decision-making” model between patient and doctor. Important medical decisions are not made in a vacuum and the availability of different treatment options as well as the weight of their risks and benefits can vary with changing circumstances. It is difficult for a rigid legal document to accommodate the nuances of such a complex situation, but one that supports and guides a decision-maker in their conversations with medical professionals can be extremely valuable. With skilful drafting, the two-way decision-making process between doctor and substitute decision-maker can be facilitated, instead of hindered.
The drafting of advanced care directives should be centered around the values and preferences of the patient as opposed to specific treatment options. The American Bar Association advises that there should not be a focus on specific clinical intervention for “distant hypothetical situation” but rather on the patient’s “values, goals, and priorities in the event of worsening health”.
Finally, the planning process for important medical decisions regarding serious illness requires input from both doctors and lawyers to ensure treatment directions can be drafted with the nuance required for complex medical situations. The ABA suggests that “lawyers and health professionals should aim for greater coordination of advance care planning efforts”, and such collaboration will help clients and decision-makers be as prepared as possible to make informed decisions.
The Client’s Role
When it comes to what clients can do, while preparing a legal document is an important step, it should be reinforced by candid conversations with decision-makers, family, and friends. This significantly eases the burden on decision-makers, as they can carry out their role in stressful situations with the peace of mind that they are not second-guessing their loved one’s wishes when it comes to treatment.
Another way clients and their decision-makers can prepare for the future is by consulting resources that facilitate the planning process. An example of such a resource is planwellguide.com, which provides guidance on important issues from choosing a substitute decision-maker, to elaborating on the pros and cons of different care options, to specific factors to consider when making an advanced care plan.
A Gift of Great Value
While the lawyer’s skill in drafting is important to making an effective plan, a lawyer’s role can extend past legal documents and into transmitting a forward-thinking approach to clients. This approach requires careful consideration and reflection on the part of the client regarding their values and priorities when faced with serious illness, as well as having frank conversations with loved ones. While having these types of conversations may not be the most merry activity over the holiday period, giving a loved one that peace of mind is a gift of immeasurable value.
Thank you for reading!
Ian Hull and Sean Hess
Isn’t estate planning just for old, married, and rich people? This is a question that we face all of the time. The simple answer is – no.
Proper estate planning helps not only the old, but the young as well.
A recent US survey amongst 23 to 35 and 35 to 44 year olds indicates that, respectively, 80% and 67% of these groups do not have a Will. Closer to home, the percentages are quite similar. A Canadian survey found that 77.2% of 25 to 34 year olds and 67.9% of 35 to 44 year olds do not have a Will. A prior Hull & Hull blog highlights those Canadians that had a Will that needed updating.
Given that the leading cause of death amongst millennials is accidental and unintentional injuries, estate planning should not wait.
A recent article on Forbes highlights estate planning tips that every millennial should consider regardless of whether they are married, have dependants, or are still paying off student loans. Of course, professional advice should always be sought.
- Add beneficiaries to your accounts – designating beneficiaries on bank accounts and investments allows for the transfer of the asset to your intended recipient upon your passing. Including the recipient as a beneficiary, as opposed to a ‘joint owner’, ensures that they do not have access to the account (and funds), while alive leading to concerns of misappropriation. The Forbes author additionally suggests that these designations should be checked at least once a year in the event they need to be updated.
- Get a basic Will – nothing overly detailed or expensive is required. Carefully thinking through the choice of estate trustee(s) and the division of assets will not only ensure your wishes are followed, but will avoid the headache of proceeding with the administration of an intestate estate. The Forbes author additionally suggests having a secured list of your digital assets, along with the username and password.
- Consider life insurance to cover student loans – certain loans are not discharged upon death. Insurance helps alleviate the concern that a co-signatory, usually a parent, is not left with the burden of paying off the remainder of the loan.
In estate litigation we often have to explain to the court, in detail, the relationship between different family members. When a client says that a person is their brother or mother, that is usually pretty straightforward.
One of the most confusing terms used to describe a familial relationship is the word “cousin”. We use the word to describe, obviously, our relationship to the children of our aunts and uncles (our true cousins). However, sometimes people also say that someone is their “second cousin twice removed”. That can make anyone quite confused about what the specific family tree should look like.
In my quest for some clarity, I came across a helpful site. It explains that if someone is your first cousin (so picture your ‘regular’ cousin) then his or her child would be your “first cousin once removed.” The term once or twice removed always means one or more generation levels different from you.
All of your regular cousins (and some can be called first, second, third etc. but I will discuss that aspect tomorrow) are at the same generation level as yourself. Those at different generational levels are referred to as “removed.”
Stay tuned for tomorrow’s blog on First, Second and Third Cousins!
READ THE TRANSCRIBED PODCAST HERE
During Hull on Estate and Succession Planning Podcast #16, we discussed 3 of the 10 causes of estate litigation. The 3 causes discussed are as follows:
1) A lack of understanding on the need for an estate plan;
2) An estate plan which is no longer current;
3) Inadequate estate planning advice.