Tag: US election

06 Nov

Voting And Powers of Attorney

Paul Emile Trudelle General Interest, In the News Tags: , , , 0 Comments

I just checked the news, and it appears that “voting” is a hot topic right now.

A question then occurred to me: Can an attorney under a Power of Attorney vote in a public election on the grantor’s behalf?

Under Ontario’s Substitute Decisions Act, 1992,  s. 7(2), a power of attorney may authorize a person “to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will.” Under s. 46(1), a person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.

However, voting in a public election is considered to be an act that is personal in nature to the individual and not something that can be done by an attorney under a power of attorney.

(Not all voting by an attorney is prohibited: An attorney may have the ability to vote in the place of the grantor in a corporate context.)

According to the website “Probate Stars”, in most US states, voting by attorney is not allowed. In some states, for example, Florida and Arizona (gotta love Arizona), legislation expressly prohibits an attorney from voting on behalf of the grantor.

In other states, voting by attorney is presumed to be not allowed, as voting is considered to be an act that is “personal” in nature, and cannot be delegated. Quoting from a Tennessee appeals court decision of Rich Printing Co. v. Estate of McKeller (citation not given):

 It is axiomatic that an agency may be created for any lawful act and that whatever a person may lawfully do, if acting in his own right and in his own behalf, he may delegate that authority to an agent. It is also axiomatic that authority cannot be lawfully delegated which is illegal, immoral or opposed to public policy, nor can one delegate an act which is personal in its nature, such as designating an agency to perform a personal duty or a personal trust. Of course an elected officer cannot delegate one to hold the office to which he has been elected in the absence of statutory authority so to do, nor to cast his vote for him.

In Ontario, it would appear that this reasoning applies as well.

Even though an attorney cannot vote for the grantor, it may be possible for the grantor to authorize someone to vote on their behalf through a proxy in limited circumstances. For example, there is a reference to proxy voting in the “Voter’s Guide for Ontario Municipal and School Board By-elections 2016-2018”. The Guide confirms that an attorney cannot vote on behalf of the elector, but a properly appointed proxy can.

Thank you for reading.

Paul Trudelle

13 Oct

The US Elections and Estate Tax

Hull & Hull LLP Executors and Trustees, In the News, News & Events Tags: , , , , , , , , , , 0 Comments

Given the intrigue and extensive coverage that the current US election has had north of the border, it is only fitting that we dedicate today’s Hull & Hull Blog to reviewing the position taken by Clinton and Trump with respect to changes to estate tax.

A recent article in Forbes explains that current US laws exempt estates worth $5.45 million or less from paying estate tax.  Estates valued higher pay 40% tax.

Hillary Clinton seeks to increase the taxes owing by the wealthiest from 45% to 65% based on the value of the estate, apparently the highest it’s been since 1981.  Specifically, estates over $10 million would be taxed at 50%, those over $50 million at 55%, and those exceeding $500 million (for a single person) at 65%  As well, Clinton also seeks to lower the exemption for estates valued at $5.45 million to $3.5 million.

Hillary Clinton seeks to increase the estate tax owed by wealthy Americans
“Hillary Clinton seeks to increase the taxes owing by the wealthiest from 45% to 65% based on the value of the estate, apparently the highest it’s been since 1981.”

Trump, on the other hand, seeks to eliminate the estate tax altogether.

According to the Wall Street Journal, the Republicans see the tax as “a patently unfair confiscation of wealth that punishes family-owned business”, while the Democrats view it as “a levelling tool necessary to combat concentration of wealth”.

In Ontario, while there is no inheritance tax, estate administration tax is charged on the total value of a deceased’s estate.  Subject to certain exceptions, this includes the following assets: real estate; bank accounts; investments; vehicles and vessels; all property held in another person’s name; and, all other property, wherever situated, including goods, intangible property, business interests, and insurance proceeds.

As discussed in prior Hull & Hull LLP blogs, new provisions came into force on January 1, 2015, which requires payment of $5.00 for each $1,000, or part thereof, for the first $50,000 and $15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000.  There is no estate administration tax payable if the value of the estate is $1,000 or less.

Noah Weisberg

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