Tag: power of attorney
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.
If you have been to a wedding or to university within the last several decades, you know Spirit of the West’s anthem “Home for a Rest“. If ever there was a song guaranteed to get you up onto your feet and the party started, this is the song. I know I personally cannot think of my early days at university without it playing somewhere in the background. It is for this reason that I read with great sadness the Globe and Mail’s report that Spirit of the West will be performing their final ever show this coming weekend.
Spirit of the West’s lead singer, John Mann, who is only 53 years old, has previously been diagnosed with early-onset Alzheimer’s. While the band had previously advised that they hoped to keep performing for as long as possible, only two years after making the diagnosis public, the band has advised Mr. Mann’s status has declined such that the time is right to bring the show to an end. Mr. Mann’s story echoes that of country legend Glen Campbell, who recently publicly played out his own battle with Alzheimer’s, releasing the gut-wrenching “I’m Not Gonna Miss You” as his final song, detailing his battles with the disease.
While hearing stories like those of Mr. Mann and Mr. Campbell are never easy, they provide us with the important opportunity to remind ourselves that no one in this world is necessarily immune from issues affecting their capacity. While it can sometimes be difficult to talk about, stories like these remind us of the importance of executing documents such as a Power of Attorney for Property and Power of Attorney for Personal Care to ensure that you are properly looked after should you become incapacitated.
While we may no longer be able to hear Spirit of the West perform live in person, their music will no doubt live on for years to come. So without further ado, take me home: Spirit of the West – Home for a Rest (Music Video)
Being an Attorney for Property can be a difficult and thankless job. As a result of the long hours which are often involved in managing an incapable person’s property, many Attorneys for Property will begin to ask themselves whether they are entitled to be paid compensation for their work. The answer to such a question is not straightforward, and will depend on each specific circumstance.
The first place to look to in determining whether an Attorney for Property is entitled to be paid compensation is the Power of Attorney document itself, and whether the document sets a specific framework regarding compensation. If the Power of Attorney document sets out a specific framework for compensation, the Attorney for Property may be paid compensation in accordance with what is provided in the document. If the Power of Attorney document specifically bars the Attorney for Property from being paid compensation, the Attorney for Property will be unable to charge compensation for their work.
Presuming that the Power of Attorney document is silent with re
spect to the issue of compensation, the compensation which the Attorney for Property may be entitled to be paid is set by the Substitute Decisions Act (the “SDA“). Section 40(1) of the SDA provides:
“A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.”
The “fee scale” contemplated by section 40(1) of the SDA is set out in Ontario Regulation 26/95, section 1 of which provides that an Attorney for Property shall be paid in accordance with the following guidelines:
- 3% on capital and income receipts;
- 3% on capital and income disbursements; and
- 3/5 of 1% (i.e. 0.6%) of the annual average value of the assets under administration as a “care and management fee”.
The amounts contemplated above are subject to reduction on a subsequent Application to Pass Accounts. To this effect, while the SDA does not require that an Application to Pass Accounts be commenced prior to the Attorney for Property being entitled to pay themselves compensation, the Attorney for Property should be prepared to later justify any amount taken in compensation on a later Application to Pass Accounts. In the event that on such a subsequent Application to Pass Accounts it is determined that the Attorney for Property has been overpaid for their work, they may be required to return any overpayment.
This week on Hull on Estates, Paul Trudelle and Doreen So discuss how a bequest to a witness may be void and who should not be a witness to the execution of a Power of Attorney.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
Estate planning and planning for the future are sometimes difficult tasks, particularly when it comes to end-of-life planning. When forced to confront their own mortality, many people are hesitant to dive in and make a plan. Unfortunately, this may result in their wishes being unknown if an emergency situation arises.
In Ontario, when a person is incapable of making their own decisions with respect to their care, the Health Care Consent Act (the “HCCA”) and the Substitute Decisions Act (the “SDA”) allow others to make decisions on the incapable person’s behalf. Section 20 of the HCCA sets out a list of persons who may give or refuse consent to treatment on behalf of someone who is incapable to give their own consent at the time. The list of people who may make decisions is as follows:
- The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
- The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
- The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
- The incapable person’s spouse or partner.
- A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
- A parent of the incapable person who has only a right of access.
- A brother or sister of the incapable person.
- Any other relative of the incapable person.
A person included in this list may give or refuse consent only if no person described in an earlier paragraph is willing or available to do so. The SDA, in turn, deals with Powers of Attorney and Guardians.
If you have not taken the time to think through your wishes with respect to treatment and communicate them to others, it is difficult to know whether your substitute decision maker under the HCCA or SDA will make the choice that you would have made yourself, had you been capable. One way of dealing with this issue is by clearly expressing your wishes, such as with a “living will”. The Ministry of the Attorney General describes a “living will” as an expression that is “sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment…[t]he term ‘advance directive’ is also frequently used to refer to such a document.” The Ministry of the Attorney General also notes that you can include your treatment wishes in a Power of Attorney document to ensure that your attorney is aware of them.
Pursuant to the SDA s. 66(3), guardians of the person and attorneys for personal care have a duty to make decisions on an incapable person’s behalf in accordance with the incapable person’s wishes, if known. The guardian or attorney must also use reasonable diligence to ascertain whether the incapable has set out such wishes. Accordingly, it is important to consider including your wishes in your Power of Attorney for personal care and communicating them to your attorney, to ensure that your wishes are known.
Thanks for reading.