Tag: power of attorney
According to the Alzheimer Society of Canada, 25,000 Canadians are diagnosed with dementia each year, and more than 500,000 are currently living with the disease. While dementia can occur at a relatively young age, the risks increase as we grow older. According to the federal government’s Chief Public Health Officer, the average age of the onset of dementia symptoms is 70 years for men and 74 for women.
One of the risks for those with dementia is losing the ability to make sound financial decisions, or, even worse, falling victim to scams in which they willingly transfer money to others without a full understanding of what they are doing. In the United States, many financial advisors have put a safeguard in place to protect their senior clients who might develop the disease – it’s called an emergency contact authorization form.
How the Form Works
With an emergency contact authorization form, the client identifies someone they trust that their financial advisor can contact if the advisor believes the client is having trouble managing their finances or is being taken advantage of financially. You can view a sample form here: [http://www.virginialynn.net/files/72367/2016%20Emergency%20Contact%20Authorization%20Form.pdf]
The form only authorizes the financial advisor to discuss the situation with the designated individual. It does not give that individual authority to manage the client’s financial affairs, as a power of attorney would. The designated individual may be the same person named in the power of attorney, but it doesn’t have to be.
Because dementia is progressive, moving from mild, to moderate, to severe cognitive decline over time, financial advisors who advise seniors are in a unique position to see these changes occur between portfolio review sessions – or to spot any unusual financial requests or transactions that seem out of character for the individual. The emergency contact authorization form gives the financial advisor the ability to take action, and discuss the situation with someone the client has indicated they trust.
It’s a protection that we hope will gain greater prominence in Canada soon. You can learn more about the use of these forms in the U.S. here: http://www.themckenziefirm.com/financial-firms-roll-out-form-aimed-at-stopping-financial-elder-abuse/
Thank you for reading … Have a great day!
Elderly persons are unquestionably at greater risk of abuse than the general public. The five general categories of abuse are physical, sexual, psychological or emotional, financial, and neglect. No doubt such abuse is on the rise, and is an issue that is generating attention worldwide.
The Australian Law Reform Commission (ALRC) was reported to have taken a substantial step forward through its recent release of a lengthy report addressing abuse of the elderly.
The report includes many recommendations for change, with a focus on the betterment of care provided to those living in care facilities, including improving (i) the reporting and monitoring of abuse, with the process overseen by an independent body, and (ii) quality of care and staffing.
The authors of the article linked to this blog cite that little is known in Australia about the overall number and severity of abuse, with sexual assault being the least acknowledged, detected and reported. They applaud the ALRC for recommending a national study to explore how common elder abuse is.
Their chief critique of the report, however, is that although it addresses the legal aspects of elder abuse, the impact on health and well-being of the victims is ignored. Moreover, absent is any comment on whether inappropriate health care is a form of abuse (e.g. using resuscitation against someone’s wishes).
The authors highlight the primary challenge to prevention, which is to equip the legal, healthcare and elder care sectors to better screen, identify and intervene. As we face similar difficulties, I expect that the initiatives and recommendations made by the ALRC would be well-received in Canada as well.
Thanks for reading,
Other blog posts that may be of interest:
Divorces can change many things in relation to rights between two people, but it may not change everything you want it to.
Life insurance is a case in point. For example, let’s say Doug marries Jane and names her as the beneficiary of his $2,000,000 life insurance policy. After five years of marriage, Doug and Jane divorce and each “waives all rights to the other’s property except as set forth in this agreement”. The marital settlement agreement/property distribution divides assets between Doug and Jane.
Post-divorce, Doug never removes Jane’s name as the designated beneficiary on the insurance policy. Doug later remarries Susan, and stays married to her for 20 years until his death. As soon as Doug remarried 20 years previously, his existing will was considered revoked automatically, so it’s clear that Jane isn’t entitled to anything under the will. But Jane is still listed as the beneficiary on the life insurance policy. Who is entitled to the $2,000,000 – ex-spouse Jane or surviving-spouse Susan?
Based on Ontario court rulings, ex-spouse Jane may actually be entitled to the life insurance proceeds, despite the divorce settlement language. You can read about a similar case here: https://www.osler.com/en/blogs/pensions/october-2009/beneficiary-designation-in-favour-of-former-wife-t
Cases like this reinforce the need for spouses who are separating or divorcing to revisit all their estate planning documents to ensure they reflect their current wishes. This recent post contains a good discussion of how marital breakdowns can lead to unintended estate consequences unless a review of estate documents takes place – and changes are made if needed: http://www.osullivanlaw.com/blog/2015/03/the-importance-of-updating-your-affairs-on-separation-and-divorce.shtml
When the zip goes out of marriage, it’s still important to show your estate some love and do a thorough review of your assets and the documentation associated with them.
Thank you for reading.
I was fortunate to have the opportunity to participate in a panel discussion on CBC’s show “On the Money” last night. The panel discussion was prompted by an article posted by CBC news entitled “Care of aging parents costs Canadians an estimated $33B annually.”
The essence of the article was that Canada’s aging population is causing adult children to incur a significant burden, not only in terms of the outlay of money for caregiving costs but, perhaps more significantly, arising from time away from work required to care for their parents.
The Ontario Legislature has recognized the need to address this issue.
Section 49.1(2) of the Employment Standards Act, contains a section on Family Caregiver Leave, which permits employees to take an unpaid leave of absence of up to eight weeks in order to provide care or support to a sick family member.
Pursuant to the statute, an employee would be entitled to an unpaid leave of absence to provide “care or support” to the following family members/individuals who have a “serious medical condition”, including:
- The employee’s spouse.
- A parent, step-parent or foster parent of the employee.
- A child, step-child or foster child of the employee or the employee’s spouse.
- Any individual prescribed as a family member for the purpose of this section.
Although it would appear that there is some relief afforded by the Legislature when an aging parent needs assistance, the fact of the matter is that long-term needs cannot be met except by careful estate planning and consideration of financial resources. It might be worth adding that the family caregiver leave provisions appear to be more directed to short-term illnesses rather than the progressive decline associated with dementia and Alzheimer’s disease.
Thanks for reading,
Later this week, House Bill 432 will come into effect in Ohio to update state estate and trust administration law. One of the most notable updates is the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act, along with corresponding updates to Ohio’s Power of Attorney Act.
The American Revised Uniform Fiduciary Access to Digital Assets Act is intended to formalize the authority of attorneys for property and estate trustees to obtain access to digital assets for deceased or incapable users. Prior to its implementation in American states (and in other jurisdictions in which comparable legislation has not yet been introduced), the intervention of the courts has often been required to grant fiduciaries with access to information and assets stored electronically. There continues to be some debate as to whether an attorney for property or estate trustee, authorized to administer tangible property, also has the authority to manage digital assets without legislation and/or terms of the Power of Attorney or Will explicitly extending this authority.
Interestingly, the Revised Uniform Act has been endorsed by Google and by Facebook, both platforms on which a great deal of the world’s digital assets are stored. In 2016, 13 states introduced the Revised Uniform Fiduciary Access to Digital Assets Act. With the introduction or enactment of the Revised Act in another 24 states since the beginning of 2017 alone, it is clear that state legislatures and online service providers alike agree that amendments to the law in recognition of the growth of technology is required to clarify the state of the law of digital assets and fiduciaries.
The Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act (2016) this past summer. While the uniform acts of Canada and the United States share a number of similarities, there are several important distinctions, which will be highlighted in Thursday’s blog post.
Thank you for reading,
Other blog posts that may be of interest:
This week on Hull on Estates, Natalia Angelini and Noah Weisberg discuss the applicability of limitation periods to power of attorney accounting in the case of Armitage v The Salvation Army.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
A perpetrator of elder abuse has recently been sentenced to three years in prison by an Ontario Court.
The man from Markham, Ontario had obtained assistance from a friend, an employee of a major national bank, in creating a power of attorney, which he put forward as a document prepared for and executed by his mother, Royale. Royale’s savings, which had been in the hundreds of thousands of dollars, were depleted to less than $15 and she was forced to live in a public nursing home.
After she learned that her funds had been stolen, Royale reported her son’s actions to the police before her death. In her videotaped police statement, Royale says, “It makes me very sad, but he has to pay the consequences.” She was visibly upset by the idea of placing charges against her son, but nevertheless proceeded to do so. In June of this year, Royale’s son was convicted of both theft and fraud over $5,000.
Unfortunately, situations like that involving Royale are all too common. A recent study suggests that one in ten American seniors are affected by elder abuse. Further, it is estimated that only one in ten victims of elder abuse actually report it. Many seniors may be reluctant to report elder abuse due to fear of what the abuser may do to them and a belief that the police and/or social agencies will not be able to provide meaningful assistance.
Incidents of elder abuse highlight the importance in establishing incapacity plans and in appointing attorneys for property and personal care that can be trusted and who can protect the grantor’s rights if he or she is unable to do so.
Royale’s other surviving children now plan to commence civil proceedings against their brother and the financial institution whose employee was involved in the creation and use of the fraudulent power of attorney.
This recent sentence sends a strong message about the seriousness of elder abuse and the lengths to which the justice system will go in order to punish those who take advantage of members of our aging population.
Thank you for reading.
Life expectancy has unsurprisingly been on the rise over the course of the last several decades. You would think with the superior quality of life many currently experience that there is hope for more people to live up to 100 and beyond. After all, the Guinness World Record for the longest living person is held by Jeanne Calment, who died in 1997 at age 122!
However, Ms. Calment’s status as a supercentenarian is a rarity. Even more exceptional is her living into her 120s. No one else has been verified as doing so. Further, it was recently reported that researchers calculate 115 to likely be the maximum life-span. Without a breakthrough that fixes age-related problems, the new research apparently indicates that living beyond this age is not probable.
Some geneticists disagree, taking the view that as there has been success in extending the life and health of certain laboratory animals, the same may be achievable for humans. With technological advances may come innovations that will meaningfully impact longevity.
The debate about whether this is achievable is expected to continue. Nonetheless, we know that people are generally living longer and, coupled with this, will have more pressure on their financial resources, as well as the increased likelihood of mental decline. So I believe it to be prudent to encourage our clients to seek the appropriate professional advice on how to plan for a longer retirement or an extended work-life, as well as for coping with cognitive impairment. Some suggestions with respect to the latter include:
- appoint your Powers of Attorney(s);
- make a Will;
- designate beneficiaries on your bank and investment accounts;
- have life insurance in place;
- simplifying your finances (e.g. consolidate accounts);
- create an inventory of assets; and
- perhaps most important, communicate with your family.
Thanks for reading and have a great weekend,
Ten years have now passed since the introduction of the Uniform Power of Attorney Act by the American Uniform Law Commission. Since 2006, the Uniform Power of Attorney Act has been approved and recommended for enactment in all US states.
Much like our own Uniform Law Conference of Canada, the American Uniform Law Commission is tasked with enacting legislation that individual states are thereafter encouraged to adopt.
To date, many states have not yet adopted the Uniform Power of Attorney Act or other comparable legislation to deal with attorneyship and guardianship issues. So far this year, however, five states, including Utah and Washington, have introduced and/or enacted the uniform legislation. A surprising number of states, which include our neighbours in New York State and vacation hotspots such as Florida and California, where a number of Canadians own property and spend the winter months, have not implemented the Uniform Power of Attorney Act.
The Uniform Power of Attorney Act is subdivided into four articles:
- Article 1 defines the term “incapacity” to reflect American common law, outlines the formal requirements for Powers of Attorney, and provides, among other terms, that a Power of Attorney will be treated as if durable or continuing (i.e. the authority of an attorney will continue during a period of the grantor’s mental incapacity, rather than being limited to use while the grantor remains capable) and will come into effect immediately, unless the document states otherwise;
- Article 2 outlines the authorities of attorneys for property and the circumstances in which an attorney may or may not exercise a Power of Attorney to transfer or deplete assets that are otherwise the subject of bequests under the grantor’s Last Will and Testament;
- Article 3 contains Power of Attorney forms and related instructions for use by lawyers and laypeople alike;
- Article 4 includes miscellaneous provisions that clarify the role of the Act within the context of other legislation and Powers of Attorney that predate it.
In Ontario, the Substitute Decisions Act governs most matters involving Powers of Attorney. If older Canadians and/or those experiencing cognitive decline spend time in the United States, it is advisable to look into the relevant state’s requirements to ensure that their Powers of Attorney provide the authority required to assist in managing affairs in these other jurisdictions.
Thank you for reading.
When will an attorney for property be barred from making a claim for compensation? Is it proper for an attorney to seek compensation after the grantor’s death? The Ontario Superior Court of Justice addressed these issues in its reasons in Armitage v Salvation Army, 2016 ONSC 2043 (Canlii).
Mr. Wiltse died on February 5, 2013. He had named the applicant, Ms. Armitage, as his executor. The only beneficiary under the will was a charity. Ms. Armitage had been appointed as the deceased’s attorney for both property and personal care prior to the deceased passing away. She began acting as his attorney in 2006 upon his admission to a hospital and subsequently thereafter a nursing home. Ms. Armitage had submitted an amount for compensation on September 5, 2013 and proceeded to file a Notice of Application on January 30, 2015. The charity disputed Ms. Armitage’s entitlement to compensation, claiming that she had exceeded the time period within which a claim could be made under the Limitations Act, 2002. Specifically, it claimed that the provisions in the Substitute Decisions Act created a right to compensation each year, from which the two year limitation period began to run at year’s end.
The Court considered whether the use of the word ‘may’ in Section 40 of the Substitute Decisions Act created a corresponding limitation period to the right to claim compensation. Justice T.D Ray concluded that if the legislature had intended to create an annual limitation period, it could have easily used language to do so. Accordingly, the only applicable limitation period was the general two-year limitation period found in the Limitations Act, which was triggered upon Mr. Wiltse’s death.
The Court also considered Ms. Armitage’s reasons for refraining from making a claim until after Mr. Wiltse died. The estate held only modest assets and Mr. Wiltse’s father had lived past 90 years old. It was possible that if Ms. Armitage had claimed compensation, Mr. Wiltse might have lived long enough to not have been able to support himself.
In its reasons, the Court also affirmed the usual practice of an attorney making claims for compensation after a grantor’s death. There was no need to provide evidence of services and expenditures, as the process for this review is found within the Substitute Decisions Act.
Thank you for reading.