Podcast: End-of-Life Fireside Chat

Title: End-of-Life Online Fireside Chat

Date: Monday, December 8, 2025

Description: On Monday, December 8, we held a free online Fireside Chat on End-of-Life Law. Dean Colleen Flood was joined by Alexandra Manthorpe (Partner, Cunningham Swan), Leanne Kaufman (President and CEO RBC Royal Trust) and Dr. David Freedman (Associate Professor, Queen’s Law) for an important panel discussion on End-of-Life Law & Planning. Covering important areas, such as Wills, Trust, and Estates, this panel is intended to de-mystify the legal implications around planning for End-of-Life.

If you are interested in learning more about End-of-Life learn more about our session that we are running in early January.

Speakers:

Colleen M. Flood - Dean, Queen's Faculty of Law
Alexandra Manthorpe, Law'10 - Partner, Cunningham Swan
Leanne Kaufman, Law'96 - President and CEO RBC Royal Trust
Dr. David Freedman - Associate Professor, Queen’s Faculty of Law

Podcast:

Queen's Law · Qlaw Pod - Episode 53 -End-of-Life Law Fireside Chat

Transcript:
00:00:00 Speaker 1
Hello, everybody.
00:00:01 Speaker 1
As you're coming in, welcome.
00:00:04 Speaker 1
My name's Colleen Flood and I'm the Dean of Queen's Law.
00:00:08 Speaker 1
And I'm very happy to welcome you to this fireside chat about end-of-life planning and the legal issues associated with it.
00:00:17 Speaker 1
I'd like to start today as we do with an acknowledgement of the lands that we are here on at Queen's.
00:00:29 Speaker 1
Today, of course, everyone is coming from many different places from across Canada.
00:00:35 Speaker 1
I'd just like to acknowledge that Queen's University is situated on the traditional land of the Anishinaabe and the Haudenosaunee peoples.
00:00:44 Speaker 1
And it's a really beautiful day here today, a late evening, early evening now.
00:00:52 Speaker 1
And as we acknowledge the beauty of the land here and the Great Lakes, and we acknowledge the importance of the land economically, culturally, spiritually to the Indigenous peoples, both locally and across Canada.
00:01:12 Speaker 1
So tonight, we're having a very important conversation.
00:01:18 Speaker 1
which invites us to look squarely at something that most of us would rather not think about, which is, of course, end of life.
00:01:28 Speaker 1
And unfortunately, though, it is something that we will all face, and those we love will live with the consequences of our decision-making on how poorly or how well we have prepared.
00:01:44 Speaker 1
And I think the question is simply not what legal documents you need,
00:01:48 Speaker 1
but what kind of future you want to shape for your family.
00:01:52 Speaker 1
I think end-of-life planning is deeply human work.
00:01:56 Speaker 1
It asks us to reflect on our values and our relationships and who we trust when we can no longer speak or act for ourselves.
00:02:09 Speaker 1
Legally, this means establishing powers of attorney for health decisions,
00:02:15 Speaker 1
designating someone to make financial choices on our behalf, and drafting a clear, thoughtful will.
00:02:24 Speaker 1
But behind those legal documents obviously lie a lot of judgments, profound judgments, about who understands your wishes, who can carry the responsibility, and what legacy, emotional as well as material, do you want to leave.
00:02:41 Speaker 1
So we have three fantastic guests to help us think all of this through.
00:02:47 Speaker 1
And they are going to have approximately 10 minutes each.
00:02:50 Speaker 1
And so we will have time for your questions.
00:02:54 Speaker 1
And you can post them in the Q&A section on the Zoom here.
00:02:59 Speaker 1
And I will relay them and ask them of our panelists.
00:03:05 Speaker 1
Natalie, who's helped us organise this event, is going to post their full bios, well, not full, but more fulsome bios in the chat so you can read about them.
00:03:18 Speaker 1
I'm just going to introduce them very briefly.
00:03:21 Speaker 1
All 3 are very, very accomplished folks and experts in this area.
00:03:26 Speaker 1
So Alexandra Manthorpe is the first speaker and she is a partner at Cunningham Swan in the Wills and Estates Group.
00:03:34 Speaker 1
Her focus is estate and trust planning, business succession planning and estate and trust administration.
00:03:42 Speaker 1
She enjoys working with clients to help them prepare for the future in order to protect themselves and provide for their loved ones in the best manner possible.
00:03:53 Speaker 1
We are so proud that she is a graduate of Queen's Law and so happy that we can call her one of our own.
00:04:00 Speaker 1
Welcome, Alexandra.
00:04:02 Speaker 1
We are too equally proud of another Queen's Law grad, Leanne Kaufman, who is the President and CEO of the Royal Trust Corporation of Canada and the Royal Trust Company.
00:04:14 Speaker 1
Leanne is responsible for the strategy and overall management of the business, which provides wealth protection and transfer solutions across generations to high net worth Canadian families.
00:04:28 Speaker 1
Finally, a very warm welcome and grateful thanks to David Freedman, who is a professor here at Queen's Law with deep expertise and trusts, wills and estates, estate litigation, civil procedure, and trial advocacy.
00:04:44 Speaker 1
We are so lucky to have someone of David's capacity and depth of knowledge on these critical topics.
00:04:53 Speaker 1
to teach our Queen's Law students and to research and publish in this field.
00:04:58 Speaker 1
So welcome and grateful thanks to you, David, for coming out this evening.
00:05:02 Speaker 1
I know there are a lot of exams probably waiting for you to grade as well.
00:05:07 Speaker 1
So even more so, grateful thanks.
00:05:10 Speaker 1
So welcome to all three.
00:05:12 Speaker 1
So we're going to kick off with Alexandra first, who's going to speak for 10 minutes around powers of attorney for health.
00:05:20 Speaker 1
And then to Leanne for powers of attorney, vis-a-vis financial matters and other matters.
00:05:26 Speaker 1
Back to Alexandra for a few minutes on wills.
00:05:29 Speaker 1
And then we're going to turn to David to talk about, unfortunately, what happens if you wind up in the courts for taking or inaction or sometimes action around some of these matters.
00:05:41 Speaker 1
So with no further ado, I'll hand it over to Alexandra.
00:05:47 Speaker 2
Thanks so much, Colleen.
00:05:48 Speaker 2
And I'm really delighted to be talking tonight about powers of attorney.
00:05:51 Speaker 2
So I think everyone knows that they need a will.
00:05:53 Speaker 2
That's usually the first thing people say to me.
00:05:55 Speaker 2
I need a will.
00:05:55 Speaker 2
I need a will.
00:05:57 Speaker 2
But powers of attorney are a really, really critical component of any good estate plan.
00:06:02 Speaker 2
As I point out to people, powers of attorney are effective while you're still alive.
00:06:07 Speaker 2
So in some ways, your powers of attorney should be perhaps even more important to you than your will, which of course comes into effect after you pass away.
00:06:14 Speaker 2
So we will talk about wills, but I'm really happy to start with focusing on
00:06:18 Speaker 2
powers of attorney.
00:06:20 Speaker 2
So what are powers of attorney?
00:06:21 Speaker 2
So powers of attorney are written documents which are effective while the grantor is alive.
00:06:27 Speaker 2
So the grantor is the person giving or making the power of attorney.
00:06:32 Speaker 2
and the person named in the document is the attorney for property or the attorney for personal care.
00:06:37 Speaker 2
And I should just note there's slightly different nomenclature, kind of depending on which province you're in, but most provinces kind of use attorney for property or attorney for personal care or healthcare, similar language.
00:06:48 Speaker 2
Importantly, the POA itself is the document.
00:06:51 Speaker 2
So a lot of people will say, oh, I'm my mother's POA.
00:06:54 Speaker 2
That's not quite correct.
00:06:55 Speaker 2
You're either attorney for property or attorney for personal care for your mother, but the document in which your name, the document which gives you the authority, is in fact the POA.
00:07:06 Speaker 2
A person doesn't need to be attorney.
00:07:07 Speaker 2
This is a question.
00:07:08 Speaker 2
They're like, well, aren't you our attorney?
00:07:09 Speaker 2
And I say, no, I'm not doing this for you.
00:07:13 Speaker 2
So attorney in that context, more of the American context, meaning lawyer, is not required.
00:07:18 Speaker 2
So when I use the word attorney, I really mean legal representative or substitute decision maker in this situation.
00:07:24 Speaker 2
So this is the person who you pick to either make property, financial decisions for you, or who you pick to make personal care, health care decisions for you.
00:07:33 Speaker 2
Very importantly, is there are legislative requirements.
00:07:35 Speaker 2
They're slightly different province to province, but it is very important to ensure that powers of attorney are executed correctly.
00:07:42 Speaker 2
If they are not executed correctly, they may not be valid, in which case you might get into guardianship, which I think David's gonna speak about a bit.
00:07:50 Speaker 2
So as Colleen mentioned, there are the two types.
00:07:52 Speaker 2
There's the power of attorney for personal care, health care, and the power of attorney for property.
00:07:57 Speaker 2
So in Ontario, we drastically overhauled our legislation in the 1990s.
00:08:02 Speaker 2
We have the Substitute Decisions Act in 1992 and the Health Care Consent Act in 1996.
00:08:08 Speaker 2
So for any of you who live in Ontario who perhaps last did your estate planning in the late '80s or early '90s, I'm not gonna call you out by name, but definitely a good idea to revisit this because your documents are probably pretty out of date.
00:08:20 Speaker 2
We've had some pretty major changes since then.
00:08:22 Speaker 2
So it is a good idea to revisit your powers of attorney.
00:08:26 Speaker 2
So just because they're two separate documents, just because they're two separate spheres of responsibility, doesn't mean you can't name the same people.
00:08:34 Speaker 2
So a lot of people will name, for example, their spouses, their attorney for property,
00:08:38 Speaker 2
their spouses, their attorney for personal care.
00:08:40 Speaker 2
So yeah, so they're used at different times, different spheres of responsibility.
00:08:45 Speaker 2
They should be two separate documents, but you can name the same people.
00:08:49 Speaker 2
So what exactly do I mean by personal care?
00:08:51 Speaker 2
So personal care covers healthcare, nutrition, shelter, clothing, hygiene, safety, the giving or refusing to give consent to treatment to which the Health Care Consent Act applies.
00:09:04 Speaker 2
It also has to do with anything with personal assistive devices, or very importantly, admission to and staying within a care facility.
00:09:12 Speaker 2
So it's really anything affecting the body.
00:09:15 Speaker 2
Property, which Leanne will speak about, that includes both real property, real estate, and personal property.
00:09:21 Speaker 2
It also includes things like filing taxes for you.
00:09:24 Speaker 2
Very importantly, in Ontario, a power of attorney for personal care is only effective if the person who gave it, again, the grantor, has become mentally incapable of making personal care decisions for themselves.
00:09:36 Speaker 2
So if the person is still capable of telling the doctor, I want this, I want that, the POA for personal care is not effective, it's not used.
00:09:44 Speaker 2
However, property, very importantly, the power of attorney for property can be effective immediately.
00:09:49 Speaker 2
So that's one big difference between personal care and property.
00:09:52 Speaker 2
Personal care can't use it unless the person's
00:09:54 Speaker 2
and capable, property you could potentially use earlier.
00:09:58 Speaker 2
There is overlap.
00:09:59 Speaker 2
So they're not kind of perfectly, there is a bit of a Venn diagram.
00:10:02 Speaker 2
And one of the areas of overlap where kind of personal care and property do touch each other is where someone lives.
00:10:09 Speaker 2
So technically that is a personal care decision, but obviously paying for it is a property decision.
00:10:14 Speaker 2
So if you do decide to name different people under personal care and property, it's important that they be able to coordinate to make these decisions for you, where you live, how do we pay for it,
00:10:24 Speaker 2
'cause that's really a decision which affects both.
00:10:27 Speaker 2
If two or more attorneys are appointed jointly, as opposed to jointly and severally, they must work together to make decisions on the grantor's behalf.
00:10:35 Speaker 2
The other option, as I said, is jointly and severally, so they can act together, they can act individually.
00:10:41 Speaker 2
So those are both worth exploring with your lawyer.
00:10:43 Speaker 2
There's different kind of pros and cons of both, but I just wanted to mention that if you appoint more than one attorney, you can do it joint or you can do it joint and several.
00:10:53 Speaker 2
All attorneys must act diligently on the grantor's behalf, in the grantor's best interests, with honesty and integrity.
00:11:01 Speaker 2
So they need to act reasonably, like I said, in good faith and in the best interests.
00:11:05 Speaker 2
The attorney for property, and I think Leanne will speak about this a little bit, must also keep detailed accounts or records demonstrating exactly what he or she has done with the grantor's property.
00:11:15 Speaker 2
The attorney for personal care should also keep good records, for example, about decisions they've made.
00:11:19 Speaker 2
Importantly, all attorneys, personal care and property, are what we call fiduciaries.
00:11:24 Speaker 2
So they have very high obligations to the grantor.
00:11:27 Speaker 2
It is a position of authority.
00:11:28 Speaker 2
It is a position of trust.
00:11:30 Speaker 2
And so a fiduciary can be removed if they do act improperly.
00:11:35 Speaker 2
Now, importantly, what happens if you do not have a power of attorney for personal care and you become mentally incapable of making personal care decisions for yourself?
00:11:44 Speaker 2
There is a list of people in Ontario, and like I said, it varies kind of province by province, but in Ontario, there is a list of people who can make a more limited range of personal care decisions for you if you do not have a power of attorney for personal care in place and you become mentally incapable.
00:12:00 Speaker 2
But importantly, this is who the government thinks maybe you'd want to
00:12:05 Speaker 2
make decisions for you.
00:12:07 Speaker 2
It may not be the people you would want to make decisions for you.
00:12:11 Speaker 2
So part of the reason why powers of attorney are so important, so powerful, is that you get to pick who makes decisions for you.
00:12:18 Speaker 2
So for example, if you have three children, but you're really estranged from one of them, and you do not want that estranged child kind of showing up at the hospital and telling the doctor, mom wants this, mom wants that, you can name a document in which you exclude that child, you pick the other two, or maybe even pick someone else, pick a sister,
00:12:35 Speaker 2
pick a friend, pick a non-blood relative, something like that, a stepchild.
00:12:40 Speaker 2
So again, don't rely on the default positions.
00:12:43 Speaker 2
It's really important, especially if you have people that you want and you don't want involved, to do these documents, pick the people you would have wanted.
00:12:50 Speaker 2
I'll just mention briefly, there are no tax implications if you do name someone who lives outside of Canada.
00:12:56 Speaker 2
So for example, if you do name someone who resides in the US, there are no tax implications with respect to personal care.
00:13:03 Speaker 2
Property is far more complicated.
00:13:04 Speaker 2
So before you name someone on a POA for property, it's really important to ascertain tax status and a few other things.
00:13:11 Speaker 2
But I just wanted to mention there are practical considerations.
00:13:14 Speaker 2
So if you do name an attorney for personal care and they cannot physically get to where you are, there can be some problems with that.
00:13:21 Speaker 2
How does the hospital verify, you know, this is the person who's named in there if they can't check their ID quickly.
00:13:27 Speaker 2
the nursing home might want to kind of again check and make sure that they're talking to the right person.
00:13:32 Speaker 2
So often it can make good sense to pick someone local, someone who may be able to come and drive to where you are if you become incapable of making these choices for yourself.
00:13:43 Speaker 2
Importantly, you can include wishes in a power of attorney for personal care document.
00:13:48 Speaker 2
So a lot of people will ask me about a living will.
00:13:50 Speaker 2
A living will is actually a misnomer.
00:13:52 Speaker 2
So a living will is actually wishes for your personal care, particularly if you're very ill, usually involves kind of end-of-life decisions.
00:14:00 Speaker 2
Do we keep life support going?
00:14:02 Speaker 2
Do we turn life support off?
00:14:03 Speaker 2
But it's your opportunity to express your wishes for when you're particularly ill towards the end of your life.
00:14:09 Speaker 2
So again, living will is a misnomer.
00:14:10 Speaker 2
It's actually wishes for your personal care.
00:14:12 Speaker 2
And if that's
00:14:13 Speaker 2
It's something that's important for you.
00:14:14 Speaker 2
It is something you can include right in the POA for personal care document itself.
00:14:19 Speaker 2
So again, talk with your lawyer.
00:14:20 Speaker 2
That may be something you want drafted and included.
00:14:23 Speaker 2
I'll just finish briefly on medical assistance and dying, MAID, because this is a question that I get A lot.
00:14:29 Speaker 2
Advanced directives with respect to medical assistance and dying MAID are not currently enforceable in Ontario.
00:14:37 Speaker 2
So it's kind of a, MAID's a bit of a patchwork across Canada.
00:14:41 Speaker 2
We're kind of, you know, it is changing.
00:14:43 Speaker 2
It's obviously changed a lot since, in the last decade since the Carter decision.
00:14:48 Speaker 2
But I just wanted to mention that advanced directives, so if you put something in your power of attorney for personal care about MAID, it is not currently something that your attorney can use or exercise
00:14:59 Speaker 2
you in Ontario.
00:15:00 Speaker 2
So in Ontario, if someone wishes to apply for or consent to MAID, they must still have the mental capacity to make personal care decisions for themselves.
00:15:08 Speaker 2
So it's not something that can be delegated under the POA yet.
00:15:12 Speaker 2
May change in the future, but that's the current state of the law.
00:15:15 Speaker 2
I think we'll turn it over to Leanne to talk about powers of attorney for property.
00:15:19 Speaker 2
So I'll leave it over to Leanne.
00:15:21 Speaker 2
And again, if anyone has any questions, please put them in because we'll have a chance to address them later.
00:15:27 Speaker 3
Thanks, Alexandra.
00:15:28 Speaker 3
Thank you for your comments.
00:15:31 Speaker 3
I just want to set a little more sort of demographic context and then dive a little bit deeper into some of the comments around powers of attorney for property.
00:15:40 Speaker 3
But I think we all know what's happening demographically here in Canada and frankly, around the world.
00:15:44 Speaker 3
We're on the cusp of becoming a super aged society here in Canada, which means that over 25% of our population will soon be over the age of 65.
00:15:54 Speaker 3
So you couple that with things tied to, there's the difference between, of course, life expectancy, which we now know is over 80 for both men and women in Canada.
00:16:04 Speaker 3
But there's something called a healthy adjusted life expectancy or a HALE score, which is actually just under the age of 70.
00:16:10 Speaker 3
So we know that we have this 10 plus year gap where things may physically and or cognitively not be what we would want for ourselves or for our family members.
00:16:22 Speaker 3
if nothing changes medically in the next little while.
00:16:27 Speaker 3
I know Alexandra mentioned that really the power of attorney is the document that might be considered even more important than the will because it's what governs when you're still alive.
00:16:38 Speaker 3
You're just maybe not capable of making your own decisions.
00:16:41 Speaker 3
But alarmingly, there is still a very large percentage of the Canadian population that doesn't have a power of attorney in place.
00:16:48 Speaker 3
We did a survey here at RBC several years ago now.
00:16:52 Speaker 3
In that survey, we discovered 52% of the Canadians saying they didn't have a will, which I know Alexander's going to talk about wills in a minute.
00:16:58 Speaker 3
But perhaps more shockingly, 65% of those people surveyed said they didn't have a power of attorney in place.
00:17:04 Speaker 3
Now, there's a couple of things that trouble me about that.
00:17:07 Speaker 3
Generally, of course, the big number, the majority of people saying they didn't have a power of attorney.
00:17:12 Speaker 3
But the number was also incongruent with the 52% who said they didn't have a will, which either means to me that they're not getting the right adequate advice when they're going and getting their wills done to also be getting a power of attorney, or, and this is my suspicion, I can't prove it, but I believe it might be true, they have a power of attorney and they don't know it, which means that they've appointed someone without giving it a whole lot of thought.
00:17:35 Speaker 3
So, I mean, the last bit of demographic data I will share is that, again, as part of this living longer, one of the fastest growing segments of our population is the over 85 crowd.
00:17:46 Speaker 3
However, one in three people over age 85 currently experiences some form of cognitive impairment.
00:17:54 Speaker 3
So that number of people over 85 expected to triple in Canada in the next 20 years or so.
00:18:01 Speaker 3
Now imagine the number of people requiring
00:18:04 Speaker 3
to have a power of attorney enacted, having to triple as well.
00:18:08 Speaker 3
It's a big societal issue for us.
00:18:11 Speaker 3
And I will also mention, although again, I think this is commonsensical, we can see it, but right now, this is a much heavier weight on women.
00:18:22 Speaker 3
Women over age 85 pretty much outnumber men two to one.
00:18:25 Speaker 3
And so we see, and 70% of Alzheimer's patients are women.
00:18:28 Speaker 3
So
00:18:30 Speaker 3
For those of you who are women listening, this is perhaps of higher import to you than even your male counterparts.
00:18:39 Speaker 3
Okay, let's go back to talking about the powers of attorney for property.
00:18:44 Speaker 3
Alexandra's already walked us through a little bit of the brief, you know, what is it, what is it, and what are some of the legal requirements?
00:18:52 Speaker 3
It is just to repeat a legal document where you appoint someone to manage your decisions.
00:18:58 Speaker 3
In this case, we're talking about your property, which doesn't just mean real property, like real estate, but all of your assets, anything you own, along with your liabilities, whatever you owe.
00:19:08 Speaker 3
So someone, you're appointing someone to step into your shoes as a substitute decision maker when you're no longer able to make those decisions for yourself, or frankly, in some cases, you're just no longer willing to do it.
00:19:19 Speaker 3
And we are seeing that with
00:19:21 Speaker 3
some of our aging clients that are not technically incapable of making decisions, but have decided that they're now vulnerable or maybe just tired, and they would like to see those powers of attorney get enacted.
00:19:36 Speaker 3
Mostly we see what we call continuing powers of attorney or enduring powers of attorney.
00:19:40 Speaker 3
Again, the names change a bit across the country, which means that the power actually comes into effect the moment that the document is signed.
00:19:49 Speaker 3
Now, of course, convention would say that the attorney shouldn't start to act the moment the document is signed without the consent of the person giving them the power.
00:19:57 Speaker 3
But we differentiate that from what might be called a springing power of attorney or again, a similar type of name elsewhere, which only
00:20:06 Speaker 3
actually comes into effect when there's a finding of incapacity.
00:20:10 Speaker 3
We see these being used rarely now, largely because of challenges improving incapacity.
00:20:18 Speaker 3
Incapacity is, it's a fluctuating concept, and it can be difficult to get an assessment.
00:20:26 Speaker 3
And so it can mean real struggles if people aren't able to step in and start using.
00:20:32 Speaker 3
the power of attorney if there isn't a finding and that is the triggering event effectively for giving them authority.
00:20:40 Speaker 3
I'm also just going to say on the jurisdictional issues, it's a completely different regime in Quebec.
00:20:45 Speaker 3
So if anyone's listening to us from the province of Quebec, most of what we're saying here, at least from how it comes into effect or the right document may not apply to you.
00:20:55 Speaker 3
And we can talk about that in the chat if you want to later.
00:21:00 Speaker 3
Another point I'd like to make about appointing an attorney is please, please, please make sure there's an alternate named, if not two alternates.
00:21:10 Speaker 3
I know David's going to talk a little bit, or I think David's going to talk about what happens if you don't have a power of attorney.
00:21:15 Speaker 3
But if you've named someone who's no longer willing or able to act, then it's as if you haven't named them at all, and you're back to having to go through the guardianship process that David will describe.
00:21:29 Speaker 3
Alexandra also talked a bit about the responsibilities, of course, to act strictly in the best interest of the person for whom we're acting, to manage their finances, to pay their bills, to file their taxes and maintain their records.
00:21:43 Speaker 3
Unless there's something that restricts the power in the document itself,
00:21:48 Speaker 3
The attorney can do anything that the person themselves would have been able to do with respect to their property, their assets, and their liabilities, other than make what we call testamentary dispositions, meaning they can't change their will or create a will for them if one didn't exist, and they can't change beneficiary designations.
00:22:07 Speaker 3
So it is a very, very broad power, as the name suggests.
00:22:12 Speaker 3
Of course, there's also liability that comes along with this role.
00:22:14 Speaker 3
Attorneys are accountable for decisions and they may face legal scrutiny from beneficiaries of the states or through another court process through passing of accounts.
00:22:24 Speaker 3
It's also important to know that, again, it varies across the various jurisdictions, but powers of attorney for property are entitled to charge compensation for the activities that they undertake.
00:22:40 Speaker 3
I want to talk for just a couple of minutes about choosing the right person to be the attorney.
00:22:45 Speaker 3
So I think Alexandra mentioned, you can have the same person that's attorney for property and personal care, or they can be different.
00:22:54 Speaker 3
You can have a company, a trust company, act as power of attorney for property, but you cannot have a trust company act as power of attorney for personal care.
00:23:03 Speaker 3
There's actually a regulated restriction on that.
00:23:07 Speaker 3
What are some of the things that you want to look for when you're thinking about who you're going to name as your attorney, bearing in mind that, again, this is the person who will be stepping into your shoes and acting for you while you are still alive, but no longer able to manage for yourself?
00:23:21 Speaker 3
Well, financial acumen, I would suggest, would be one.
00:23:24 Speaker 3
I mean, they don't need to be an accountant, but you want them to be able to understand the nature of the assets that you have and the liabilities that you have.
00:23:31 Speaker 3
and be able to instruct professionals and do all the things that you would have done.
00:23:36 Speaker 3
So if it's someone that you wouldn't trust to balance your checkbook while you're looking over their shoulder, is it the right choice when you're not there to supervise?
00:23:45 Speaker 3
Organizational skills, reliability, these are also very important factors to consider.
00:23:52 Speaker 3
The impact on the family dynamics is something that might be
00:23:56 Speaker 3
under considered.
00:23:57 Speaker 3
So this might be a situation where you're trying to decide whether you're naming one child or all three, and you're trying to be fair.
00:24:06 Speaker 3
But is that really fair?
00:24:07 Speaker 3
Or what if you name one as power of attorney for property and the other for care?
00:24:12 Speaker 3
Can they get along in making those decisions?
00:24:14 Speaker 3
Because of course, those decisions are inexorably linked.
00:24:17 Speaker 3
So just giving a little bit of thought to, okay, what's this going to look like when I'm not here to keep the peace?
00:24:25 Speaker 3
It is possible to have multiple attorneys, but I think it is important to think about whether that's practical and feasible.
00:24:33 Speaker 3
Could there be conflict?
00:24:35 Speaker 3
What about complexity in the considerations?
00:24:39 Speaker 3
Are they equally skilled to be able to take on the role?
00:24:43 Speaker 3
Alexandra mentioned location or a geographic, you know, situation.
00:24:49 Speaker 3
There's certainly a convenience factor or inconvenience factor when someone is out of the province or out of the country, but there could be also legal implications.
00:24:59 Speaker 3
And one big glaring example that people may not be aware of sufficiently is if your named attorney is actually a resident of the United States, the Securities and Exchange Commission or the securities regulator in the US prohibits
00:25:16 Speaker 3
Canadian investment advisors from giving or taking instructions from a US resident.
00:25:23 Speaker 3
So whoever your investment professional is in Canada may not be able to deal with your attorney if they are actually living in the US.
00:25:32 Speaker 3
So something else to think about if that's applicable to you, and I suggest you get some cross-border advice if that might be your situation.
00:25:41 Speaker 3
And then the last thing I'll say about choosing the right attorney is, do they want the job?
00:25:46 Speaker 3
I think sometimes we put people's names in there and we don't talk to them about it.
00:25:50 Speaker 3
We don't set them up for success and maybe we don't even ask permission.
00:25:53 Speaker 3
So I really think it's a good idea to discuss these responsibilities openly with the person or the people that you're thinking of naming and ensure that they both understand what you're asking of them and they are willing to do it.
00:26:07 Speaker 3
So just to wrap up on this section, I would say prioritize planning.
00:26:12 Speaker 3
If this is not documentation that you have in place today or you don't know if it's current, go and take a look at it.
00:26:18 Speaker 3
Make sure it takes into consideration all of your current relationships and your current situation.
00:26:26 Speaker 3
For example, has there been a change in a marriage status?
00:26:30 Speaker 3
Has there been a change in a relationship?
00:26:34 Speaker 3
Make sure you consult professionals, especially if there's any degree of complexity involved.
00:26:40 Speaker 3
And again, go back to, you know, have the conversation.
00:26:45 Speaker 3
Make sure you're talking openly with your family.
00:26:48 Speaker 3
Talk to the people that you're choosing.
00:26:49 Speaker 3
Ideally, talk to the people that you're not choosing who might be disappointed with that situation.
00:26:54 Speaker 3
So that again, there's not this family drama at the same time that, you know, if someone's stepping in to act for you,
00:27:03 Speaker 3
Something's gone wrong, probably.
00:27:05 Speaker 3
And you don't need this trauma and drama of who was chosen and who wasn't chosen layered on to the caregiving and physical and cognitive issues that might also be going on.
00:27:19 Speaker 3
So, Alexandra, I'm going to turn it back to you to talk about wills.
00:27:23 Speaker 2
Thanks so much, Leanne.
00:27:25 Speaker 2
Yeah, so that's great.
00:27:27 Speaker 2
As David and Leanne and I know, you cannot force your attorney to act, just like you cannot force your executor to act.
00:27:34 Speaker 2
So please, please speak to the people you're naming.
00:27:37 Speaker 2
And as Leanne said too, speak to the people you're not naming, 'cause no one can speak better for you than you.
00:27:43 Speaker 2
So again, if you can explain to your three children why you're only picking one of them or two out of three of them,
00:27:48 Speaker 2
That can do a lot to alleviate stress and grief in what is often a stressful situation if attorneys are suddenly having to act because mom's had a stroke, dad's had a heart attack.
00:27:58 Speaker 2
So definitely ask the people you're naming.
00:28:00 Speaker 2
I'm going to speak about wills and kind of briefly get into some of the things that affect wills as well.
00:28:05 Speaker 2
But what is a will, briefly?
00:28:06 Speaker 2
I think most of us know wills, like powers of attorney, are written documents which set out what the testator or will maker would like to have happen with his or her property on death.
00:28:18 Speaker 2
Just like with powers of attorney, there are legislative requirements for them to be valid and special rules about who can act as a witness.
00:28:25 Speaker 2
So this is often why do-it-yourself wills are especially problematic because people haven't gotten advice about, you know, hey, these are valid, can I do this?
00:28:32 Speaker 2
But also they're not executed correctly.
00:28:34 Speaker 2
So if a will is not executed correctly, there are now ways for the will to be kind of made effective later, but often involves going to court and arguing about should this not be a valid will or not.
00:28:45 Speaker 2
So one of the reasons definitely to work with a lawyer
00:28:48 Speaker 2
to get it executed.
00:28:49 Speaker 2
Very, very importantly is not all of your property is dealt with under your will.
00:28:55 Speaker 2
So the classic example of property which may not be dealt with under your will is jointly owned property.
00:29:01 Speaker 2
So there are kind of two common ways for people to co-own property.
00:29:05 Speaker 2
whether it's real estate or personal property, the most common one is joint tenancy.
00:29:11 Speaker 2
So it doesn't mean you're a tenant, it doesn't mean you're renting it, you're actually an owner.
00:29:14 Speaker 2
But if husband and wife, for example, are joint tenants, one of them dies, it automatically goes to the survivor 100%.
00:29:21 Speaker 2
So that, again, is a very common way for couples to co-own real estate, by way of example.
00:29:26 Speaker 2
If one of them dies, it kind of 100% beneficially belongs to the survivor.
00:29:30 Speaker 2
Now, the other common way for people to co-own assets are what we call tenants in common.
00:29:35 Speaker 2
So tenants in common, you have...
00:29:37 Speaker 2
separate ownership interests.
00:29:39 Speaker 2
It could be 50-50, it might be 90-10, but the main point is it does not come with survivorship.
00:29:45 Speaker 2
So if one of the tenants in common dies, that deceased owner's...
00:29:50 Speaker 2
percentage, 50% or more, does not automatically go to the surviving co-owner or surviving co-owners.
00:29:56 Speaker 2
It goes under his or her will.
00:29:58 Speaker 2
So that is more common, for example, between friends, between business partners, sometimes between siblings for the family cottage.
00:30:05 Speaker 2
So always double check if you're not certain how do you own it.
00:30:07 Speaker 2
Are you joint tenants?
00:30:08 Speaker 2
Are you tenants in common?
00:30:10 Speaker 2
Comes with a big difference.
00:30:11 Speaker 2
A lot of people, as we might know, do put children on assets, sometimes cottages, sometimes bank accounts.
00:30:17 Speaker 2
There can be a lot of implications with this.
00:30:20 Speaker 2
There's a very influential decision from the Supreme Court of Canada called PCOR, and it held that if a parent adds an adult independent child, so not a spouse, not a minor child under the age of 18, not a child who is dependent, for example, maybe a child with a disability.
00:30:38 Speaker 2
So if a parent adds an adult independent child to an asset like a bank account, that child is deemed to be holding that asset on resulting trust for the parent.
00:30:49 Speaker 2
Now, this is a presumption, it can be rebutted, but I find it's actually what was intended.
00:30:53 Speaker 2
So a lot of my clients, if you have three or four children, you're only adding one of them to the bank account.
00:30:58 Speaker 2
Typically, it's because you want that child to help you.
00:31:01 Speaker 2
But when you die, if I ask the people, What's your intention when you die?
00:31:04 Speaker 2
Oh, I want it split four ways.
00:31:08 Speaker 2
So I often have to ask clients, because often they've kind of gone ahead and done this and not thought about the implications.
00:31:13 Speaker 2
Is that a gift to that child who you've added, or in fact, are you intending for the child to be holding it in trust?
00:31:19 Speaker 2
So it's good to document that.
00:31:20 Speaker 2
It's a huge area of estate litigation, so good to document it.
00:31:25 Speaker 2
I really, really want to mention that joint ownership is not appropriate in all situations, and you need to ensure that you're not accidentally creating problems by adding someone.
00:31:35 Speaker 2
So for example, you're not risking additional or immediate payment of income tax.
00:31:39 Speaker 2
You're not risking creditors.
00:31:40 Speaker 2
You're not risking family law problems.
00:31:42 Speaker 2
So if you add your son to the cottage, your son gets a divorce, guess what?
00:31:46 Speaker 2
The family cottage might be getting dragged into your son's divorce.
00:31:49 Speaker 2
You might also be risking the co-owner using the property inappropriately.
00:31:53 Speaker 2
So before you do add
00:31:55 Speaker 2
anyone, really, whether it's a spouse, whether it's a child, whether it's someone else onto your assets, get legal, financial and tax advice just to make sure you fully understand what you're doing.
00:32:06 Speaker 2
Because again, your will may not overrule how you own your property, how you've already set things up.
00:32:12 Speaker 2
So it's really important to kind of make sure how you've set things up kind of align with what you want under your will.
00:32:19 Speaker 2
Leanne mentioned beneficiary designations.
00:32:21 Speaker 2
So on certain assets, you are permitted to designate a beneficiary
00:32:25 Speaker 2
beneficiaries.
00:32:26 Speaker 2
So this includes life insurance products, including segregated funds, pensions, and certain registered accounts such as RRSPs or RRIFs, tax-free savings accounts.
00:32:36 Speaker 2
So it's not every like a day-to-day checking account, day-to-day bank account, you can't necessarily designate a beneficiary, but for certain registered accounts, life insurance, pensions, you can.
00:32:46 Speaker 2
It's good to double check that.
00:32:47 Speaker 2
If you don't designate a beneficiary, typically your default is a state, in which case it might go under your will, but it's good to get legal and tax
00:32:55 Speaker 2
advice if you are going to be designating someone, especially for something like an RRSP or a RIF, for which there can be quite important tax implications.
00:33:04 Speaker 2
I'll just say this briefly because I think it's kind of obvious, but people need to hear it.
00:33:08 Speaker 2
You can't just do whatever you want to do under a will.
00:33:12 Speaker 2
You must fulfill your obligations.
00:33:14 Speaker 2
So for example, if you owe spousal support, guess what?
00:33:17 Speaker 2
That can continue.
00:33:19 Speaker 2
If you owe child support, guess what?
00:33:21 Speaker 2
That can continue.
00:33:22 Speaker 2
So it's really, really important, especially to
00:33:25 Speaker 2
provide for people who are financially dependent on you, spouses, minor children.
00:33:29 Speaker 2
If you don't, David might be there kind of helping with a will challenge, and quite often we'll succeed.
00:33:35 Speaker 2
So that's why when I meet with clients, I want to find out about the whole family situation.
00:33:40 Speaker 2
Debts, Leanne mentioned liabilities.
00:33:42 Speaker 2
Those don't go away just because you die.
00:33:44 Speaker 2
If you pass away, we still owe taxes, we still owe credit card bills, we still owe other things.
00:33:49 Speaker 2
I'll just briefly mention trusts.
00:33:52 Speaker 2
There are, trust is a huge topic.
00:33:54 Speaker 2
David teaches a course in it.
00:33:56 Speaker 2
So that lets you know how long we could talk about trust for.
00:33:59 Speaker 2
I'll just briefly mention there are kind of two important kinds of trust broadly.
00:34:03 Speaker 2
A testamentary trust, which is the type of trust that's generally included under a will.
00:34:09 Speaker 2
Those are very common in modern wills.
00:34:10 Speaker 2
So most modern wills, for example, if you're leaving property to children, to grandchildren, there'll be a basic trust in there so that, for example, the children get it at age 25 or age 30 instead of giving everything immediately or when they're under age 18, when you're not permitted to own property.
00:34:26 Speaker 2
So a testamentary trust is something you include in a will.
00:34:29 Speaker 2
There are freestanding trusts as well, inter vivos trusts, trust between living people, and you might hear about them for family trusts as well.
00:34:38 Speaker 2
It's a huge topic, but I do do certain trust planning with clients.
00:34:42 Speaker 2
So if it's something that you're interested in, especially for example, minimizing probate tax or other things might be a consideration, good to talk to your lawyer about trust planning.
00:34:52 Speaker 2
There are some other things we can do to kind of minimize probate tax.
00:34:56 Speaker 2
Many of us have heard of probate tax.
00:34:58 Speaker 2
Ontario, BC, Nova Scotia have fairly high probate tax or estate administration tax.
00:35:04 Speaker 2
Other jurisdictions really don't have it.
00:35:05 Speaker 2
So for example, Alberta, Quebec, other places, it's less of a concern, but it certainly can be a concern in Ontario where I practice.
00:35:12 Speaker 2
So there are some things you can do to minimize or reduce probate tax.
00:35:16 Speaker 2
As I mentioned, you can see if registered assets, life insurance have beneficiary designations on them, but there's
00:35:22 Speaker 2
there's also some planning we can do.
00:35:23 Speaker 2
So if you have shares in a privately held Ontario business corporation, if you have certain valuable personal effects like a car collection, an art collection, if you have certain real estate that you acquired under registry, we may be able to deal with that without probate, but you need two wills to do it.
00:35:39 Speaker 2
So it's kind of a unique Ontario thing, but basically you can kind of divide your assets into two piles, what needs probate, what doesn't need probate, and you can have a will which covers kind of each of those types of assets.
00:35:51 Speaker 2
So it's a very common
00:35:52 Speaker 2
planning technique, especially in the last kind of 20 years or so, and something to explore with your lawyer if you think you might qualify it, especially if you're a business owner or if you're an incorporated professional.
00:36:03 Speaker 2
There's another kind of cool trust that we can do if you're age 65 plus.
00:36:06 Speaker 2
It's called an alter ego trust or a joint spousal trust, joint partner trust, if you're a couple.
00:36:11 Speaker 2
That's also something to explore.
00:36:13 Speaker 2
It can be a great way to save a state administration tax, and it can also be very useful for incapacity planning.
00:36:19 Speaker 2
So if you're worried about
00:36:21 Speaker 2
Who's going to manage my assets for me when I die?
00:36:23 Speaker 2
And then what happens with my assets after I die?
00:36:26 Speaker 2
There are certain kinds of trusts that we can set up now.
00:36:28 Speaker 2
While you're capable, when you're 65 plus, that can have a big impact on how your estate is administered.
00:36:34 Speaker 2
I'll just leave it because I know there's going to be a little plug at the end for donations because we just, of course, had Giving Tuesday.
00:36:40 Speaker 2
But if you want to do charitable giving, you got to do it under your will.
00:36:44 Speaker 2
Or you got to do it by way of beneficiary designation on a registered asset.
00:36:48 Speaker 2
So if you die without a will, there is nothing for non-blood relatives, for charities.
00:36:55 Speaker 2
And very importantly in Ontario for common law spouses, that shocks a lot of people.
00:37:00 Speaker 2
But common law spouses are not considered spouses under the rules of intestacy dying without a will in Ontario.
00:37:06 Speaker 2
That's again, Ontario.
00:37:07 Speaker 2
Some other provinces are different.
00:37:09 Speaker 2
So it is really, really important to do a will because if you want to provide for a common law spouse, charity, a non-blood relative, including a stepchild, for example, it's really important that you have a will that includes what you want to do.
00:37:24 Speaker 2
Yeah.
00:37:24 Speaker 2
And again, it can be really rewarding.
00:37:26 Speaker 2
So if you're planning on doing some charitable giving, talk to your lawyer because there's some really neat things you can do, include in the will, and perhaps also do with your financial advisor.
00:37:34 Speaker 2
So I'll turn it over to, I think, Colleen, are you going to introduce David?
00:37:37 Speaker 2
Are we going straight to David?
00:37:39 Speaker 1
Straight to David, I think.
00:37:41 Speaker 2
Okay.
00:37:41 Speaker 2
All right.
00:37:42 Speaker 2
Thanks.
00:37:43 Speaker 4
Perfect.
00:37:44 Speaker 4
Hi, everybody.
00:37:46 Speaker 4
I have
00:37:49 Speaker 4
prepared a few slides, which I'm going to try to put up on the screen at some point, and I'm sure that I'll screw it up.
00:37:54 Speaker 4
So it'll give you a chance to laugh at me.
00:37:57 Speaker 4
Usually when I do these kinds of presentations in person, I ask everybody to put their hand up if they have made a power of attorney so I can then shame the people that haven't made them.
00:38:12 Speaker 4
I can't do that because it's all we're online, but I would like to
00:38:18 Speaker 4
at the outset say how important it is to make a power of attorney for personal care.
00:38:26 Speaker 4
We normally associate this with a need for people to make decisions on behalf of an older adult and usually an older adult that has dementia.
00:38:42 Speaker 4
If, God forbid, you get hit by a bus and you go to the hospital and you're unconscious, guess what?
00:38:48 Speaker 4
You need a power of attorney for personal care so somebody can make decisions on your behalf.
00:38:54 Speaker 4
It's a very, very important document to have, and it's a terrible unkindness not to make a power of attorney for personal care because it means that other people have to now step into the void and figure out what to do.
00:39:07 Speaker 4
So from my part of the show, if there's anything that you remember,
00:39:12 Speaker 4
Please make a power of attorney for personal care.
00:39:16 Speaker 4
Okay, let me see if I can do the sharing of the PowerPoint, which I am sure that I'll screw up.
00:39:28 Speaker 4
How am I doing?
00:39:29 Speaker 4
Is it on the screen?
00:39:32 Speaker 4
Anybody.
00:39:33 Speaker 1
Yes, it is.
00:39:35 Speaker 4
All right, I did it.
00:39:36 Speaker 1
But it's not in PowerPoint view.
00:39:40 Speaker 4
It's not in PowerPoint view.
00:39:42 Speaker 1
Yeah, we can see.
00:39:43 Speaker 4
Okay, the hell with this.
00:39:45 Speaker 4
Let's turn it off.
00:39:45 Speaker 4
I don't know how to do it.
00:39:48 Speaker 1
Maybe Natalie.
00:39:48 Speaker 1
I can share it, David.
00:39:51 Speaker 4
You know what?
00:39:52 Speaker 4
That's okay.
00:39:54 Speaker 4
I thought I would be a clever person and try to use PowerPoint, but I never use it.
00:40:00 Speaker 4
And so my apologies.
00:40:02 Speaker 4
So I'd like to talk about a few litigation issues to do with powers of attorney for personal care.
00:40:10 Speaker 4
We have a time set aside to talk, to answer questions.
00:40:14 Speaker 4
And if you have questions about litigation and powers of attorney for property management or anything else, I'm happy to do that.
00:40:22 Speaker 4
But for the moment, I think I'd like to just concentrate on powers of attorney for personal care.
00:40:27 Speaker 4
So again, these are documents that a person makes when they're mentally capable of making the document.
00:40:37 Speaker 4
And what it does is it appoints a person or people together with alternates to make decisions when a person lacks capacity to make those decisions for themselves of a particular type.
00:40:51 Speaker 4
And that type is where a person can live, consent to health care, you know, things like that, not money.
00:41:01 Speaker 4
This type of power of attorney
00:41:04 Speaker 4
only comes into existence, it only can be used when a person is no longer capable of making those kinds of decisions for themselves.
00:41:15 Speaker 4
So it's not like the power of attorney that Alexander talked about, making it immediately available to anyone.
00:41:22 Speaker 4
This only comes into enforcement.
00:41:26 Speaker 4
It can only be used when a person lacks the capacity to make a particular type of decision for themselves.
00:41:34 Speaker 4
And the other thing to remember about this is it's not an all or nothing game.
00:41:41 Speaker 4
A substitute decision maker can make decisions on behalf of a person that doesn't have capacity to make that decision anymore.
00:41:50 Speaker 4
But if that person still has capacity to make decisions, they get to make those decisions for themselves.
00:41:57 Speaker 4
And in terms of litigation, that sometimes becomes a topic.
00:42:01 Speaker 4
So when we think about litigation normally, normally people suing each other, they have a complaint, they go to court, and they find out whether the complaint is valid, and if it's valid, maybe somebody's going to have to pay them some money.
00:42:16 Speaker 4
Somebody comes to fix your furnace, they do a garbage job, you have to find somebody else to fix it up, you sue them for the cost of the repair.
00:42:25 Speaker 4
Sometimes that's the kind of litigation that happens in this area.
00:42:29 Speaker 4
Sometimes it's because it's unclear what a person can do, and you need basically a judge to bless that decision.
00:42:40 Speaker 4
And sometimes those decisions are very important, and not everybody is going to agree, and so it may become necessary for a judge to become involved.
00:42:49 Speaker 4
So let me turn to the type of litigation that most commonly occurs in this area.
00:42:57 Speaker 4
And that is where there's either no power of attorney that's been made, or the attorney that's been nominated to act is unwilling or unable to act.
00:43:12 Speaker 4
And now we need to find somebody.
00:43:17 Speaker 4
One good reason to make a power of attorney is that litigating in the absence of a power of attorney is very, very expensive.
00:43:26 Speaker 4
Even if there's no opposition, it's very expensive.
00:43:30 Speaker 4
So if a person doesn't make a power of attorney for personal care, and it's necessary to have somebody appointed to make decisions for them, then there has to be an application that's made to the court.
00:43:43 Speaker 4
And that application is called a guardianship application.
00:43:46 Speaker 4
The court appoints a guardian, a guardian for property management or a guardian for personal care.
00:43:54 Speaker 4
And if you think about it, if it's a power of attorney for personal care, the court is appointing somebody to make all the important decisions that that person could normally make, whether to consent to surgery, whether the consent to being moved into a long-term care home, whether to consent to, you know, all kinds of things.
00:44:14 Speaker 4
The judge is essentially taking away somebody's civil rights and giving all of their rights to someone else, and as a result,
00:44:24 Speaker 4
When a power of attorney has not been made and it's necessary to apply to the court for guardianship, judges are very, very careful to make sure that granting an order for guardianship is appropriate.
00:44:38 Speaker 4
The public guardian and trustee, which is a public law officer in the Ministry of the Attorney General, they're automatically a party to all of these proceedings, and they have an important something to say about whether a guardianship order is going to be granted or not.
00:44:54 Speaker 4
The person who's at the center of this, we call them an incapable party or an allegedly incapable party at law, they have to have their own lawyer too.
00:45:04 Speaker 4
And so the first thing that's going to happen is that a judge is going to appoint a lawyer for them through the office of the public guardian and trustee, at least initially, so they can make representations and be part of the process.
00:45:16 Speaker 4
And part of the litigation, probably the first stop in all of this,
00:45:21 Speaker 4
is for the court to determine whether they're mentally incapable or not.
00:45:24 Speaker 4
And that may mean all of their health care records are going to be revealed to the parties to the application.
00:45:31 Speaker 4
There may be an assessment done by a geriatric psychiatrist or a capacity assessor.
00:45:37 Speaker 4
It's kind of very intrusive.
00:45:39 Speaker 4
And lots of things become part of the public record.
00:45:43 Speaker 4
So
00:45:44 Speaker 4
A guardianship proceeding is slow.
00:45:47 Speaker 4
It probably takes, even in a fast court, about six months to get a guardianship order.
00:45:52 Speaker 4
It's expensive.
00:45:53 Speaker 4
I would say the cheapest it's going to run is probably $5,000 to $8,000, and it's going to be very burdensome to the parties that have to do this.
00:46:04 Speaker 4
So one of the reasons to do a power of attorney is to avoid having to go to court to apply for one at great expense, and it takes an awful lot of time.
00:46:14 Speaker 4
Sometimes it may be just that there's a power of attorney, but the attorney that was nominated is not available or unwilling to act.
00:46:22 Speaker 4
It's a little bit easier.
00:46:23 Speaker 4
Now the court can make a guardianship order, but it kind of has a basis upon which to do so based on the power of attorney.
00:46:30 Speaker 4
Sometimes it's because there's bad behavior by an attorney.
00:46:35 Speaker 4
an attorney for property management that like misappropriates assets or something like that.
00:46:40 Speaker 4
In our area of personal care, it may be an attorney that's not actually doing the job that they were appointed to do.
00:46:50 Speaker 4
They're not making decisions properly and as a result need to be replaced.
00:46:55 Speaker 4
Or there's multiple attorneys that have been appointed and they can't get along.
00:47:01 Speaker 4
And this happens when you appoint, a number of kids together that may have very, very different belief systems and very, different belief systems than the person that appointed them.
00:47:11 Speaker 4
And this becomes an issue where a person is a person of faith and has.
00:47:16 Speaker 4
very strong ideas as to what should be allowed and not allowed, and the attorneys disagree with one another.
00:47:21 Speaker 4
And now a judge is going to have to grant a guardianship order basically to clear out the attorneys and replace them with a guardian that can take over.
00:47:32 Speaker 4
And so that's a kind, that's one stream of litigation that sometimes takes place.
00:47:39 Speaker 4
Another type of stream of litigation that takes place with respect to these
00:47:45 Speaker 4
power of attorney for personal care decisions or guardianship for personal care decisions is where it's not really clear what the attorney should do.
00:47:59 Speaker 4
So generally speaking, when it comes to things like healthcare, we've got two statutes.
00:48:05 Speaker 4
One's called the Healthcare Consent Act and one's called the Substitute Decisions Act.
00:48:09 Speaker 4
The Healthcare Consent Act
00:48:11 Speaker 4
allows for people to give consent to healthcare, it sort of narrowly construed in various situations.
00:48:17 Speaker 4
And there's a schedule of people that can provide consent, including the treating physician.
00:48:22 Speaker 4
So again, God forbid you get hit by a bus and you get taken to KGH in an ambulance, they're not looking around for substitute decision makers before they decide to treat your injuries.
00:48:33 Speaker 4
The emergency room docs can, they themselves can consent immediately
00:48:41 Speaker 4
or to health care, to treatment for you.
00:48:44 Speaker 4
But there are limits with respect to what they can and should do under the Health Care Consent Act, and therefore you need a power of attorney for personal care under the Substitute Decisions Act.
00:48:56 Speaker 4
However, it gets a little bit complicated with what an attorney should authorize and not authorize.
00:49:04 Speaker 4
And there's basically two standards to this.
00:49:07 Speaker 4
One is,
00:49:09 Speaker 4
If the attorney knows what the law calls the last capable wish of the incapable party, and that's usually expressed in the power of attorney document itself.
00:49:19 Speaker 4
You know, if you want a DNR, do not resuscitate order to be available to your attorney, you should specify that.
00:49:27 Speaker 4
If you don't want that, you should specify that.
00:49:30 Speaker 4
What's in the power of attorney document becomes very important if the attorney is going to be able to make decisions that reflect the values and the wishes of the now incapable party.
00:49:44 Speaker 4
Because otherwise, the other standard is best interests.
00:49:49 Speaker 4
What is in the incapable party's best interest?
00:49:52 Speaker 4
And here, you might get a disagreement between the treating physicians and the family members.
00:49:58 Speaker 4
For example, should life support be withdrawn or maintained?
00:50:03 Speaker 4
Should there be a test done to determine whether there's been brain death?
00:50:06 Speaker 4
Because in Ontario, it's not just a heart stopping that can be death.
00:50:10 Speaker 4
There could also be a cessation of activity in the brain, which will constitute death.
00:50:15 Speaker 4
And sometimes disagreements take place as to whether testing should happen for that.
00:50:19 Speaker 4
And there's been a number of cases
00:50:21 Speaker 4
that have gone to the Court of Appeal, and one went to the Supreme Court Canada a number of years ago on this point.
00:50:27 Speaker 4
So there's that sort of piece of it.
00:50:30 Speaker 4
And then there's sometimes just disagreements between the treating physicians and the attorney with respect to what would be appropriate treatment.
00:50:40 Speaker 4
And now there are questions as to whether the attorney is acting properly or not by following or not following the medical advice of the treatment team.
00:50:49 Speaker 4
So what ends up becoming very important is this power of attorney for personal care being drafted with sufficient detail that it helps to guide the attorney in making these important decisions at the end of life, where people are under a lot of stress, and they're looking for guidance within the document itself before making decisions that may be irreversible.
00:51:16 Speaker 4
In those kinds of cases, to bring the matter into court can be done on an expedited, urgent basis.
00:51:23 Speaker 4
It puts judges in an extremely difficult position, and sometimes the litigation, unfortunately, doesn't reach the point of resolution where a decision is made before, unfortunately, the incapable party passes.
00:51:41 Speaker 4
And that's very rough to see where the family members want clarity, but the nature of the litigation process doesn't really allow it to happen in any expedited way.
00:51:51 Speaker 4
I don't want to make it seem too harsh.
00:51:56 Speaker 4
It's just that at the end of life, when you need to make decisions in a hurry and you don't have a power of attorney and have to go to court, you're probably not going to enjoy the process and it's probably not going to turn out very well at all.
00:52:09 Speaker 4
So what do you get?
00:52:10 Speaker 4
What are the lessons from all of this?
00:52:14 Speaker 4
Powers of attorney are part of an incapacity plan.
00:52:19 Speaker 4
What is going to happen if I lose the capacity?
00:52:24 Speaker 4
temporarily or permanently to make decisions for myself.
00:52:30 Speaker 4
Thought should be given to the various contingencies that are going to arise.
00:52:37 Speaker 4
The people that I want to be attorneys don't want to be attorneys.
00:52:40 Speaker 4
Or I think that I'm going to have one set of choices before me and actually it's going to be different now.
00:52:48 Speaker 4
It's important in planning to really think hard about
00:52:53 Speaker 4
what kinds of contingencies might realistically arise and how you can cover those off in the power of attorney document.
00:53:02 Speaker 4
Otherwise, it may be necessary to go to court to deal with that.
00:53:08 Speaker 4
There are power of attorney, there's a kit that's available online through the Ministry of the Attorney General.
00:53:16 Speaker 4
With great respect to my betters in the government, I strongly encourage you not to use this and instead to go see a lawyer.
00:53:25 Speaker 4
These kinds of do-it-yourself kits are really good at the basics, but the basics is by no means good enough.
00:53:34 Speaker 4
For indigent older adults in Kingston and the surrounding area, there is a clinic in the law school called the Elder Law Clinic
00:53:43 Speaker 4
with where law students under the supervision of a lawyer can assist with making these kinds of documents.
00:53:51 Speaker 4
There are lots of lawyers in the city and in the area like Alexandra who can help you.
00:53:56 Speaker 4
Go to Alexandra first.
00:53:57 Speaker 4
But if she's too busy, then go somewhere else.
00:54:00 Speaker 4
Go see a lawyer.
00:54:01 Speaker 4
This is one of these cases.
00:54:03 Speaker 4
Nobody wants to spend money on lawyers, including other lawyers.
00:54:06 Speaker 4
But this is one that you really are buying peace of mind.
00:54:09 Speaker 4
And I strongly suggest that you have the power of attorney document drafted by a lawyer with expertise in this area so that there aren't problems that arise at the end of life that require a solution, which may not come.
00:54:26 Speaker 4
I think that you should think very carefully about who you appoint as your attorney.
00:54:32 Speaker 4
A power of attorney for personal care requires somebody to make very intimate decisions.
00:54:39 Speaker 4
Appointing your child who lives in Australia may not be the best idea.
00:54:45 Speaker 4
You may want to appoint somebody that's closer.
00:54:48 Speaker 4
Appointing the child that doesn't really feel comfortable dealing with medical issues is probably not a great idea.
00:54:55 Speaker 4
Maybe appoint somebody else.
00:54:57 Speaker 4
I think it's time to be selfish in these documents and appoint the person that you think is actually going to do a good job rather than appointing a number of people together because you think it's rude otherwise not to appoint them and they'll be offended.
00:55:13 Speaker 4
That kind of thinking is really tragic in this area.
00:55:19 Speaker 4
The other thing that I want to highlight is
00:55:22 Speaker 4
if there isn't planning done and things go into court on a guardianship order, these are public documents.
00:55:31 Speaker 4
And that means lots of people can get access to it.
00:55:35 Speaker 4
And there might be court filings and affidavits and things that are available.
00:55:38 Speaker 4
Courts can seal some of these things, but you don't necessarily want
00:55:45 Speaker 4
the kind of information that's required to be put before the court being put into public records.
00:55:50 Speaker 4
I'm not saying that there's somebody that's going to hack into the court system and get your information and misuse it, but it may be necessary as part of the process to have a great reveal of a lot of information that you don't necessarily want to be revealed.
00:56:09 Speaker 4
And the lack of an incapacity plan is unfortunately
00:56:14 Speaker 4
going to make that information, if it's relevant, it's going to have to be produced.
00:56:18 Speaker 4
It's going to have to be given to the public guardian and trustee.
00:56:21 Speaker 4
If the guardianship application is opposed, let's say there are numbers of people, each one of whom want to be appointed, that information is going to be given to everyone.
00:56:31 Speaker 4
That's not something that necessarily is desired by somebody.
00:56:36 Speaker 4
And again, the secret here is in capacity planning.
00:56:40 Speaker 4
So I think that's all I've got to say.
00:56:42 Speaker 4
I think at some point we're going to be doing questions and answers and we can play Stump the Chump and I'm happy to answer your questions if I can.
00:56:52 Speaker 1
Thank you, David.
00:56:53 Speaker 1
Thank you, Alexandra.
00:56:54 Speaker 1
Thank you, Leanne.
00:56:56 Speaker 1
Terrific.
00:56:57 Speaker 1
And I've learned more every time I hear these kinds of conversations.
00:57:03 Speaker 1
It makes me reflect on.
00:57:05 Speaker 1
the fact that I need to come down and see you, Alexandra, and get my thing sorted a bit more.
00:57:11 Speaker 1
There's quite a lot of questions that have been coming in the chat.
00:57:15 Speaker 1
And one that I just want to raise for all of you is to understand the difference between a substitute decision maker and a power of attorney for personal matters.
00:57:27 Speaker 1
And given the substitute decision making hierarchy,
00:57:32 Speaker 1
that exists in Ontario.
00:57:34 Speaker 1
So the question is, I'm wondering what the reasons are that a person would be litigating or petitioning to take over care and why this becomes so expensive when at least in Ontario, we have a substitute decision-maker hierarchy that appoints decision-makers in the absence of a POA document.
00:57:53 Speaker 1
Who would like to field that one?
00:57:56 Speaker 1
I'll have a go.
00:57:58 Speaker 1
Sure.
00:57:59 Speaker 1
David.
00:58:00 Speaker 4
So the statutes that allow for decisions to be made absent a power of attorney are limited, and they really are restricted to context.
00:58:13 Speaker 4
So that Healthcare Consent Act, that's the major one that deals with consent to treatment.
00:58:19 Speaker 4
It doesn't deal with a whole range of other things that might be necessary.
00:58:24 Speaker 4
For example,
00:58:25 Speaker 4
selecting a long-term care facility, nursing home, something like that, choice of residence requires a power of attorney for personal care or guardianship order.
00:58:36 Speaker 4
Sometimes things happen kind of extra legally where people are not paying attention, which is a bit of a problem.
00:58:44 Speaker 4
But that power of attorney is necessary
00:58:48 Speaker 4
because the statutes or the regulations that allow for decisions to be made in other circumstances are much narrower.
00:58:58 Speaker 4
And so it might be that at one point the statute gets rewritten, hopefully it will, to allow for decisions to be made without a power of attorney for personal care or a power of attorney for property management, but I wouldn't bet on it.
00:59:12 Speaker 4
So I hope that helps.
00:59:14 Speaker 2
And it's also, David mentioned this, it's what if it's someone who has no standing under the legislation?
00:59:20 Speaker 2
Like you might want a friend of yours who's a nurse to be your attorney for personal care, right?
00:59:25 Speaker 2
Friends don't have standing.
00:59:26 Speaker 2
You know, you might want a stepchild to me making these decisions, not your biological child.
00:59:31 Speaker 2
So don't rely on the default precisions that the government has.
00:59:35 Speaker 2
It's really empowering to be able to pick your own decision makers to make, again, a broader range, a full range
00:59:42 Speaker 2
of medical and personal care decisions for you.
00:59:46 Speaker 1
Thank you.
00:59:48 Speaker 1
Did you want to add anything, Leanne?
00:59:51 Speaker 1
Nope.
00:59:52 Speaker 1
Okay.
00:59:54 Speaker 1
I think there's quite a number of questions that are relating to incapacity.
01:00:00 Speaker 1
And so, for example, questions about if you are
01:00:07 Speaker 1
Let me find one that would be appropriate.
01:00:11 Speaker 1
I'm a POA, power of attorney, for personal care for someone with early dementia.
01:00:17 Speaker 1
The POA for property can't be reached.
01:00:21 Speaker 1
Can a person with some incapacity write a new power of attorney for property?
01:00:28 Speaker 1
So I'm a POA for personal care for someone with early dementia.
01:00:31 Speaker 1
The POA for property can't be reached.
01:00:34 Speaker 1
Can a person with some incapacity write a new POA for property?
01:00:38 Speaker 1
So it's kind of a question about the test for incapacity.
01:00:43 Speaker 1
Leanne, will you take that one?
01:00:45 Speaker 3
I can kick it off and please jump in here.
01:00:50 Speaker 3
I think in that case, whoever is taking the instructions to try to draft a new POA would need to satisfy themselves that they fit, that the individual passed the
01:01:04 Speaker 3
was in their eyes capable to make the decisions, which like kind of the loose test is understand the nature of their assets and what the impact of making a decision or not making a decision would be.
01:01:24 Speaker 3
And it could, I mean, capacity is a very, very tricky
01:01:28 Speaker 3
thing.
01:01:29 Speaker 3
And if you need, there may be a requirement that they get a formal capacity assessment.
01:01:35 Speaker 3
And the test is different for different things.
01:01:37 Speaker 3
So the test to write a power of attorney is quite different than the test, for example, to get married.
01:01:44 Speaker 3
You can get married with much less capacity than you can write a will.
01:01:49 Speaker 3
Does that make sense?
01:01:49 Speaker 3
I don't know.
01:01:50 Speaker 3
But so I think it's very- Many.
01:01:53 Speaker 1
People have found out to their detriment, I think.
01:01:56 Speaker 3
Yes.
01:01:58 Speaker 3
So I think it's very situational and, would depend on are there, is this person really good first thing in the morning, but not great by 5 P.m.?
01:02:10 Speaker 3
So it's a hard question to answer.
01:02:12 Speaker 3
I don't, I'm sure David or Alexandra probably have something to add or correct me.
01:02:18 Speaker 1
Yeah, do you want to talk about the differences between the kinds of capacity needed for personal decision making or healthcare decision making versus property decision making?
01:02:27 Speaker 1
Perhaps, Alexandra?
01:02:29 Speaker 2
Yeah, so well, I think that's a key point that Leanne made is it's task specific and they're all different.
01:02:35 Speaker 2
So the test for testamentary capacity, the mental capacity functioning that you have to have in order to make a will is different than even the power of attorney for property capacity is different from the power of attorney for personal care capacity.
01:02:51 Speaker 2
So there's no such thing as global incapacity.
01:02:53 Speaker 2
So unless someone is in a coma, in which case they're probably globally incapable, there's no such thing
01:02:59 Speaker 2
oh, mom's incapable.
01:03:00 Speaker 2
I would say, well, incapable of what?
01:03:02 Speaker 2
Is she capable of making certain personal care decisions?
01:03:05 Speaker 2
Is she capable of making certain?
01:03:07 Speaker 2
So yes, the test.
01:03:09 Speaker 2
So I think to go back to your point, the test is different, especially if it's an early diagnosis of Alzheimer's, of Lewy body, of whatever.
01:03:18 Speaker 2
Someone may still retain the mental capacity required to make a power of attorney document.
01:03:24 Speaker 2
It's important they see a lawyer quickly.
01:03:26 Speaker 2
Because I think as we know, I mean, most dementias are progressive.
01:03:30 Speaker 2
Mental functioning tends to get worse over time, you know, when people have these progressive illnesses.
01:03:36 Speaker 2
So at some point, they will lose the capacity to make a new personal care, a power of attorney for a personal, they will lose the capacity to make a new power of attorney for property.
01:03:45 Speaker 2
So just because someone has a diagnosis, oh, I've been diagnosed with Alzheimer's, doesn't mean they're suddenly globally incapable of doing a will, of doing a power of attorney.
01:03:53 Speaker 2
I've helped many people who have a recent devastating diagnosis.
01:03:58 Speaker 2
And as long as they still know what property they have, their liabilities, who's in their family, do they appreciate that the attorney could misuse the authority
01:04:06 Speaker 2
Do they appreciate that they can still revoke the document if they're capable?
01:04:11 Speaker 2
I'm kind of simplifying.
01:04:12 Speaker 2
It is set out very clearly in the Substitute Decisions Act what the test is.
01:04:16 Speaker 2
But as long as someone still has a fairly high degree of mental functioning and can appreciate things, they can do a new document, they can revoke an existing document, but they got to see a lawyer soon.
01:04:26 Speaker 2
Because to be frank, I'd say that the clock is ticking, but the clock is probably ticking.
01:04:31 Speaker 2
They probably have a more limited scope to be able to do this document than other people.
01:04:36 Speaker 2
So.
01:04:36 Speaker 2
Right.
01:04:37 Speaker 1
And so I think that maybe addresses a question that's from Leslie there, Alexandra, about diminished capacity versus complete loss of capacity.
01:04:46 Speaker 1
So sometimes...
01:04:48 Speaker 2
Yeah, yeah.
01:04:49 Speaker 2
And one important thing to note is that attorneys have a positive obligation to consult with and involve the grantor to the extent possible.
01:04:59 Speaker 2
So for example, if I am exercising power of attorney for property for my mother, I am supposed to be talking to her.
01:05:05 Speaker 2
I'm supposed to be showing her what I'm doing.
01:05:06 Speaker 2
I'm supposed to be getting her opinion.
01:05:08 Speaker 2
Mom, is this where you'd like to live?
01:05:10 Speaker 2
Would you like to live somewhere else?
01:05:11 Speaker 2
So even if they've lost the ability to do these things for themselves, talking to them, involving the grantor
01:05:18 Speaker 2
to the extent possible, that's actually a positive obligation.
01:05:21 Speaker 2
So just if David gives me a POA, I'm not off and running and I never have to talk to David again.
01:05:27 Speaker 2
I should be proactively involving David to the best of his ability.
01:05:32 Speaker 2
Now, his ability will maybe get affected over time.
01:05:35 Speaker 2
And there may be a point in time in which I don't have to show David financial statements or other things.
01:05:40 Speaker 2
But if the person does have diminished capacity, but still some ability to have a say, oh, I'd like to wear this, I'd like to live there, I'd like to eat this,
01:05:48 Speaker 2
I really don't want that surgery.
01:05:50 Speaker 2
You should be involving them in the decision-making to the fullest extent possible.
01:05:55 Speaker 1
So I think you've all talked about the importance of making these calls about power of attorney or wills or whatever it is to make sure-- I think it was you, Alexandra, said, to pick the right person, or David, pick the right person, the person who will actually do the job.
01:06:15 Speaker 1
that you want them to do.
01:06:16 Speaker 1
But of course, families are families, life is life, and you might really feel awkward or embarrassed or scared.
01:06:25 Speaker 1
There might be that you might anger members of your family.
01:06:30 Speaker 1
So can we just talk a little bit about transparency here, the need?
01:06:34 Speaker 1
For transparency and apropos of that, Dwayne asks also a very logistical question.
01:06:40 Speaker 1
Can you e-mail your power of your attorney to your power of attorney, so your document, the power of attorney, so that they have it on file to provide, so they have it when they need it, or does it have to be a hard copy?
01:06:56 Speaker 2
I'll answer that one quickly, because I think that's a simple one.
01:06:58 Speaker 2
So our typical practice at our firm is we do scan.
01:07:02 Speaker 2
All clients signed powers of attorney and many clients request a copy of it.
01:07:06 Speaker 2
So most of our clients do actually have a PDF of their signed power of attorney for personal care, their signed power of attorney for property.
01:07:13 Speaker 2
I always caution, do you really want to give this to your attorney yet, especially for property.
01:07:18 Speaker 2
You may not want your attorney having this document and going out and acting without your knowledge and consent.
01:07:23 Speaker 2
So always be cautious about that.
01:07:25 Speaker 2
But the reality is quite often you will need to show an original or a notarized power of attorney, especially to a financial institution or, for example, to transfer real estate.
01:07:36 Speaker 2
Usually we're wanting to see an original power of attorney for document or a notarized, which is kind of a lawyer certified, a lawyer kind of true copy of the power of attorney.
01:07:46 Speaker 2
So quite often, no, quite often a PDF, a simple scanned copy of the POA will be insufficient.
01:07:54 Speaker 2
Usually financial institutions
01:07:55 Speaker 2
and other third parties will request to see an original or an material copy.
01:07:59 Speaker 2
They'll take that on their system.
01:08:01 Speaker 2
I often say to the attorney, make sure you get that back.
01:08:03 Speaker 2
So just because the bank, for example, needs to see the original power of attorney, doesn't mean they need to keep it, especially if you have a limited number of powers of attorney.
01:08:13 Speaker 2
A person can only ever do one will, but under our legislation, you can actually do multiple copies of the same POA.
01:08:19 Speaker 2
So it's important that the attorney always, to the extent possible, have and retain at least one original.
01:08:26 Speaker 1
So once, and maybe, Leanne, that's a really important point, right, about giving the power of attorney vis-a-vis property, handing it over to the, from the grantor to the grantee.
01:08:39 Speaker 1
And Alexandra's counseling here, maybe hold your gunpowder until you really have to.
01:08:45 Speaker 1
Is there a risk here?
01:08:47 Speaker 1
How much is there a danger for people in handing over those power of attorneys?
01:08:53 Speaker 3
Yeah, and to the question on transparency as well.
01:08:57 Speaker 3
So first of all, I made the point earlier, but please tell the person that you've appointed them and make sure that they want the job.
01:09:07 Speaker 3
You know, legally, they shouldn't be acting without your consent if you continue to have capacity.
01:09:14 Speaker 3
So there's probably recourse.
01:09:18 Speaker 3
There is also, we see it all the time.
01:09:21 Speaker 3
There's abuse and misuse of powers of attorney.
01:09:25 Speaker 3
So if that's a concern, maybe they're not the right choice to begin with, but you know, there's always a risk.
01:09:33 Speaker 3
But having said that, maybe they don't need a copy of the document, but they should know where to find it.
01:09:38 Speaker 3
You should tell them who has the original, what law firm drafted it, here's their contact information.
01:09:44 Speaker 3
And to add to that, I would say, there's, and this is perhaps more on death, but I think it applies equally in capacity situations, a really robust sort of when I die binder,
01:09:58 Speaker 3
will go a long way to setting your attorney or your executor up for success.
01:10:03 Speaker 3
And again, they don't need to have full transparency to what's there today, but they need to know where to find it when they need it.
01:10:11 Speaker 3
And they need to know who all the key contacts are.
01:10:13 Speaker 3
And let's not forget about everything that is digital only in today's world.
01:10:18 Speaker 3
So make sure that there's a bit of a scavenger, a little a little breadcrumb trail of
01:10:23 Speaker 3
of what they're going to need to know digitally and how to access it as well, because there's a lot of things that if you can't get access to, it's as if they don't exist anymore.
01:10:33 Speaker 3
So we really recommend a very strong, you can call it whatever you want.
01:10:38 Speaker 3
When I die, binder may not be a sexy marketing title, but something that the good old accordion file, right?
01:10:45 Speaker 3
With all of the key accounts and contacts, et cetera.
01:10:50 Speaker 1
Passwords and all this kind of stuff.
01:10:52 Speaker 2
Yeah.
01:10:52 Speaker 2
And I'll just mention funeral homes, especially if you're thinking about pre-planning your funeral.
01:10:56 Speaker 2
Funeral homes, some of them have some great materials.
01:10:59 Speaker 2
I love it.
01:10:59 Speaker 2
They have wonderful pamphlets that are 20 pages long.
01:11:02 Speaker 2
You can fill it in and update it.
01:11:04 Speaker 2
So I'll just mention, if you're thinking about kind of doing a Folsom estate plan, you might be wanting to do funeral planning.
01:11:10 Speaker 2
Funeral homes are great at giving you the documents that executors, but also attorneys will need.
01:11:15 Speaker 2
And Leanne's got a great point, like most people get their bank statements digitally now.
01:11:20 Speaker 2
So it's not like we can go through someone's mail and be like, Oh, they banked at Scotiabank.
01:11:24 Speaker 2
Oh, they banked at TD.
01:11:25 Speaker 2
We may not be having access to this.
01:11:27 Speaker 2
So sometimes we have a Dickens of a time figuring out what the person had, and I'm having to write general inquiry letters to all the banks to try and find out where this person banks.
01:11:37 Speaker 2
So that's not ideal, 'cause that means no one's been managing or looking after these accounts sometimes for months.
01:11:42 Speaker 2
So having a cheat sheet, what you have, what you owe, keeping it current, tell your attorneys and executors where it is,
01:11:50 Speaker 2
is critical, yeah.
01:11:51 Speaker 2
Right.
01:11:52 Speaker 1
And very hard for a lot of people to get around to do with folks' busy lives, but very important to help the folks, the powers of attorney and their executives and so on.
01:12:04 Speaker 1
There are quite a number of questions that are kind of about the cost of these things and access.
01:12:10 Speaker 1
And David mentioned that the
01:12:12 Speaker 1
Queen's Law has an elder law clinic, which is an income assessment, but does help provide some help for folks on low incomes to get this kind of support.
01:12:25 Speaker 1
But there is a question about just generally, and I'm sure it's very context-specific, of course, but how much does it cost roundabout to draft a power of attorney?
01:12:36 Speaker 1
Alexandra, David, can you?
01:12:39 Speaker 2
Powers of attorney are by themselves.
01:12:40 Speaker 2
So if we're not doing a will, if we're not doing more complex planning, powers of attorney by themselves are a few $100.
01:12:45 Speaker 2
They're not, I mean, we still need a meeting.
01:12:48 Speaker 2
We still have to find out, you know, what the person had, what they're looking to do, are they capable?
01:12:52 Speaker 2
You know, we have to draft it.
01:12:53 Speaker 2
There might be some back and forth by e-mail, and then of course they need to execute it, but it's a few $100, maybe to a few $1,000.
01:13:00 Speaker 2
So it's not a lot of money.
01:13:02 Speaker 2
to do powers of attorney.
01:13:03 Speaker 2
It's a bit more, again, if we're doing a will and other planning.
01:13:06 Speaker 2
But as David said, he said, it's expensive.
01:13:08 Speaker 2
I'll tell you, it's 15, 20, 25,000 for guardianship and it's slow.
01:13:14 Speaker 2
And we, again, we've had guardianship where we get guardianship, mom dies three days later.
01:13:19 Speaker 2
So that was 25,000 for what?
01:13:21 Speaker 2
For, you know, so son had authority for three days and then there's, you know, probably died without a will.
01:13:26 Speaker 2
So guardianship can be horrifically expensive, slow, invasive.
01:13:31 Speaker 2
Again, it may not be the people you would have wanted.
01:13:33 Speaker 2
So, you know, a few hundred dollars to, you know, a few thousand dollars for lawyer drafted powers of attorney versus thousands for guardianship or if there's a dispute or if we're have to, you know, remove someone and replace someone.
01:13:47 Speaker 2
David mentioned there are free ones online, and if someone does have lower income, they might qualify for legal aid, especially if you're in the Kingston area with the Elder Law Clinic.
01:13:56 Speaker 2
So, yeah.
01:13:59 Speaker 1
So someone here is opining or wondering about what happens if a power of attorney is struggling because they are on low income to actually fulfill their role and that they need money for the additional costs or these kinds of things.
01:14:19 Speaker 1
What happens in those circumstances?
01:14:22 Speaker 2
So I mean, ideally, the power of attorney has language, for example, about the attorney for property being able to hire professionals.
01:14:28 Speaker 2
So for example, picking the person you trust is critical.
01:14:32 Speaker 2
You have to pick someone you trust, but that person may not be a lawyer.
01:14:35 Speaker 2
That person may not be an accountant.
01:14:37 Speaker 2
You might want to hire an accountant to file your taxes each year still, or have your attorney be able to retain an accountant.
01:14:43 Speaker 2
So ideally, there's language.
01:14:44 Speaker 2
I have language in all of my powers of attorney to make sure that the attorney can be reimbursed for any out-of-pocket expenses.
01:14:50 Speaker 2
So for example, if someone is driving to the
01:14:52 Speaker 2
the hospital regularly in parking.
01:14:54 Speaker 2
We all know how expensive it is to park at hospitals.
01:14:56 Speaker 2
They should be reimbursed for that.
01:14:58 Speaker 2
They're not there for fun.
01:14:59 Speaker 2
They're there to fulfill their duties as attorneys for personal care.
01:15:02 Speaker 2
So ideally, again, if you're drafting these documents or working with a lawyer, think about that.
01:15:07 Speaker 2
Do you want to put in broad language so that your attorney can be reimbursed for out-of-pocket expenses?
01:15:13 Speaker 2
Do you want to put in, frankly, even language about compensation?
01:15:18 Speaker 2
You know, my attorney can get paid.
01:15:20 Speaker 2
There is some legislation, I should say it's a regulation about what guardians of property can get paid.
01:15:29 Speaker 2
But it's a good idea to have some language in a POA for personal care, POA for property, if you would like for your attorney to get paid.
01:15:36 Speaker 2
I should just note, if an attorney seeks compensation, they can be held to a higher standard.
01:15:42 Speaker 2
So if you're going to get paid to do it, you better be doing a really good job because you're actually held to a higher standard than an attorney who does not take compensation.
01:15:50 Speaker 2
I would think there should be broad language in there to making sure that this person who's doing you a huge favor, who's taking on a huge job for you, is not out of pocket.
01:16:00 Speaker 2
So again, that's something you should draft.
01:16:02 Speaker 2
And generally, if an attorney does need to do something, it should be reimbursed or paid out of the grantor's property.
01:16:09 Speaker 2
So for example, if the attorney pays for taxes for the grantor, that should be reimbursed out of the grantor's bank account.
01:16:17 Speaker 4
If I can just say something as well, just one of the problems with powers of attorney is they don't come with instructions.
01:16:25 Speaker 4
And it's easy to make a mistake.
01:16:27 Speaker 4
And so I think it's important for people to understand that if you're a trustee, or an estate trustee, what we used to call an executor, or an attorney or a guardian for under a power of attorney for an incapable party, you're entitled
01:16:45 Speaker 4
to retain a lawyer to advise you and have that lawyer's fees paid out of the incapable party's property.
01:16:55 Speaker 4
And I think it's a very good idea to ensure that if you are an attorney, right at the beginning, you go see a lawyer and get some advice as to how you're supposed to operate, what you're entitled to be indemnified against, what you can claim.
01:17:11 Speaker 4
but really how you should keep records, how you should be doing your job, because actually you can get into a lot of trouble if you don't do things properly, particularly with property.
01:17:21 Speaker 4
And that's gonna come out probably after the person passes away.
01:17:26 Speaker 4
And other people that are interested in the estate are gonna go, So where's all the money?
01:17:31 Speaker 4
And now the attorney says, Well, I used it.
01:17:33 Speaker 4
And they'll say, Well, can I see the receipts?
01:17:36 Speaker 4
And you go, Receipts?
01:17:39 Speaker 4
I didn't keep any receipts.
01:17:40 Speaker 4
And now you're in a lot of trouble.
01:17:42 Speaker 4
So that's not to say that there's danger lurking behind all doors.
01:17:48 Speaker 4
But this question of, when I'm doing my job, I want to do it right.
01:17:54 Speaker 4
I don't want to be offside.
01:17:56 Speaker 4
I don't want to do anything that's wrong.
01:17:58 Speaker 4
That's a good concern.
01:18:01 Speaker 4
And the answer to that is to retain a lawyer to advise you.
01:18:05 Speaker 4
That doesn't mean you have to be seeing Alexandra every week.
01:18:08 Speaker 4
But in an hour of her time, she'll be able to set you up, tell you what you should be doing in terms of keeping records, telling you what you can indemnify yourself against out of the incapable party's assets, what sorts of things you should be doing.
01:18:27 Speaker 4
And that really sets up the attorney for success as they go forward and protects the incapable party at the same time.
01:18:35 Speaker 2
Yeah, it's one of those stitch in time saves nine, you know, like sometimes just educating people undoes hours and hours of mistakes.
01:18:42 Speaker 2
And yeah, and as David will know, trying to recreate your records years later, it's very difficult, if not impossible.
01:18:53 Speaker 2
So I'll just plug, Leanne may not be able to do it, but I'll just plug a trust company.
01:18:58 Speaker 2
You know, I got to say this, that if you're in a high conflict situation, you know, or let's say you're an immigrant, you don't have it necessarily someone in Canada
01:19:05 Speaker 2
who can do this for you.
01:19:06 Speaker 2
You're in a blended family situation, your children don't get along, things are tense.
01:19:10 Speaker 2
There's a lot to be said about picking a trust company, a professional to do this for you because they know what to do and they will keep records.
01:19:18 Speaker 2
They will be...
01:19:20 Speaker 2
reliable, they're licensed, they're regulated.
01:19:22 Speaker 2
So sometimes, again, just picking the right attorney from the beginning, someone who knows to do these things, is critical.
01:19:28 Speaker 2
But as David said, yes, attorneys should be getting legal advice, especially if they're not, if they haven't done this before and they don't know exactly what to do.
01:19:37 Speaker 1
So there is quite a complicated question that I don't know.
01:19:42 Speaker 1
We won't be able to answer the specifics here, but perhaps the more general idea of the problem of planning for the future of an adult who is severely developmentally delayed.
01:19:59 Speaker 1
And the person asking the question, they have guardianship.
01:20:05 Speaker 1
They want to ask questions about structuring his finances, trusts, assets in his name, cannot exceed $40,000 according to the ODSP.
01:20:14 Speaker 1
He doesn't have a will.
01:20:17 Speaker 1
We can't really address the specifics of this, but do we have general kind of advice about dealing with these matters?
01:20:23 Speaker 1
Obviously, this is someone that likely needs to
01:20:27 Speaker 1
get some detailed legal advice, but would anyone want to weigh in on the importance of a need for and how to approach planning in this kind of situation?
01:20:37 Speaker 2
I'll just mention two things.
01:20:38 Speaker 2
I think Leanne made a great point that one thing an attorney cannot do and a guardian cannot do is make a will.
01:20:45 Speaker 2
So it's important to note that if someone does have guardianship or someone is an attorney, they cannot make a will for an incapable person.
01:20:52 Speaker 2
So the person has to have the requisite testamentary capacity to make their own will.
01:20:56 Speaker 2
So it is possible
01:20:57 Speaker 2
that if the person has a severe disability affecting their cognitive ability, they may not be able to make a will, in which case they might die intestate without a will.
01:21:07 Speaker 2
I'll just say briefly, 'cause it's something really I'm really passionate about, but if there is someone in your family who has a disability, especially if it's someone on disability support, you should be talking to a lawyer to include something called a fully discretionary trust or a Henson trust in your will for this person, because as you said, Colleen, if someone who is on disability support
01:21:27 Speaker 2
whether BC, Ontario, elsewhere, if they receive too much money all at once or even like income too much in a 12-month span, it can disentitle them.
01:21:36 Speaker 2
There can be clawback on ODSP.
01:21:39 Speaker 2
So it's very important to structure your inheritance to this person in a particular manner so that ODSP can be preserved.
01:21:45 Speaker 2
And again, working with a lawyer to do a good trust in your will for that beneficiary is critical.
01:21:50 Speaker 2
I think David wanted to make some points.
01:21:53 Speaker 4
Yeah, I want to say that if you have the assets to be able to retain a lawyer, you should really retain a lawyer to do this.
01:22:02 Speaker 4
At the same time, I just wanted to mention with respect to
01:22:07 Speaker 4
Substitute decision-making with respect to older adults and disability planning.
01:22:12 Speaker 4
There are a couple of good legal aid clinics that are available that have good resources online as a way to educate yourself.
01:22:21 Speaker 4
The first is called the Advocacy Center for the Elderly, ACE, in Toronto, which has really good resources online in respect to substitute decision-making.
01:22:31 Speaker 4
And the other is called ARCH.
01:22:33 Speaker 4
And ARCH is, again, a legal aid clinic that is oriented towards
01:22:39 Speaker 4
disability, people with disabilities.
01:22:42 Speaker 4
But that's kind of basic information, very, very good.
01:22:46 Speaker 4
With disabilities, depending on what kinds of assets there are available and the age and the nature of the disability and the plan going forward, this gets pretty complicated.
01:22:56 Speaker 4
There are, you know, tax incentives that are available that, you know, you should be aware of.
01:23:02 Speaker 4
You know, what Alexandra was talking about, a discretionary trust, sometimes called the Henson Trust, allows for, you know, assets to be put into trust so that they can be used for the support of the disabled party without interfering with their entitlements under the Ontario Disability Support Program.
01:23:21 Speaker 4
It is complicated, but this is exactly where,
01:23:26 Speaker 4
know getting legal advice and and getting legal advice from somebody that has expertise in the in the area it it is complicated but you want to maximize every single dollar for that dis disabled party.
01:23:41 Speaker 1
Okay we're coming closer to the end I thought I might just ask this last question apparently from a funeral director thank you for joining us um
01:23:49 Speaker 1
And the question relates to something that you mentioned, Alexandra, about common law spouses not being automatically inheriting when someone dies intestate in Ontario.
01:24:03 Speaker 1
The question is, which I think was addressed, so the question is, are they entitled to make funeral decisions when there is no will in place?
01:24:13 Speaker 1
They said, Initially, we were taught that a common law spouse is not included in this hierarchy.
01:24:19 Speaker 1
But lately I've been hearing differences in opinions, but never a clear answer.
01:24:24 Speaker 2
So I think the simple answer is no will, no executor.
01:24:26 Speaker 2
So one of the main functions is a will.
01:24:29 Speaker 2
is to appoint an executor, sometimes called a state trustee, but it's appoint someone to immediately make decisions after your death.
01:24:36 Speaker 2
And one of the first decisions is, what do we do with that?
01:24:39 Speaker 2
Burial, cremation, this, that, the other.
01:24:41 Speaker 2
So anything affecting the funeral is generally the executor's first job.
01:24:45 Speaker 2
So again, no will, that's the document that appoints executors.
01:24:50 Speaker 2
So it's very risky for a funeral home or for third parties to be taking instructions from someone who has not received what an
01:24:59 Speaker 2
we call a certificate of appointment.
01:25:02 Speaker 2
So a certificate of appointment with a will, if there is a will, and we're just confirming the executor's authority, or a certificate of appointment of a state trustee without a will, if there is no will.
01:25:12 Speaker 2
Used to be called letters probate with a will, letters of administration without a will.
01:25:16 Speaker 2
But no, frankly, if there is no will, it's risky for a third party to be relying on the instructions of anyone without court confirmation of that person's authority to bind the deceased.
01:25:29 Speaker 1
Thank you very much.
01:25:31 Speaker 1
Okay, I think there are many questions that we haven't got to.
01:25:35 Speaker 1
So we're going to have to do around to a fireside chat, I think, at another point in the not too distant future.
01:25:41 Speaker 1
Because clearly there's a lot of interest in appetite.
01:25:45 Speaker 1
A lot of questions about cross-border POAs in Ireland and Australia and relative to being here in Canada, something I have an interest in as well.
01:25:55 Speaker 1
So
01:25:56 Speaker 1
I think we have to do another one of these.
01:25:57 Speaker 1
I am conscious of the time, though, because I know that we're taking away from everybody's evening.
01:26:05 Speaker 1
And I want to thank all of you online for participating.
01:26:10 Speaker 1
Thank you so much for coming out this evening.
01:26:13 Speaker 1
Lovely to at least experience some of your questions and answers.
01:26:19 Speaker 1
Thank you to our terrific panel for being so engaging and rolling up your sleeves and answering
01:26:25 Speaker 1
Lots of tough questions, and for giving everybody a wonderful overview.
01:26:31 Speaker 1
I want to note a couple of things.
01:26:34 Speaker 1
If you're interested in more and more issues around end of life, such as medical aid and dying, we are offering an intensive course, professional intensive, for those working in areas around end of life or interested in this.
01:26:51 Speaker 1
on January the 15th and 16th and Natalie has put a link to that if you're interested in registering for that course.
01:27:01 Speaker 1
Unlike this one that is a paid one so but you can check it out.
01:27:06 Speaker 1
And then in the spirit of the holiday season, all of the panelists and myself would like to ask you to consider, if you're able, of course, to make a small donation to the Mission Food Bank and Martha's Table.
01:27:22 Speaker 1
Natalie has added the link in the chat.
01:27:25 Speaker 1
I just want to wish you all the happiest of holiday seasons, and I hope that you have a wonderful break with your family and the ones that you love.
01:27:34 Speaker 1
And remember, if you love them, write a power of attorney.
01:27:38 Speaker 1
All right.
01:27:38 Speaker 1
Thanks, everybody.
01:27:40 Speaker 1
Thanks, David.
01:27:40 Speaker 1
Thanks, Alexandra.
01:27:41 Speaker 1
Thanks, Leanne, and thanks, Natalie.
01:27:45 Speaker 1
Bye-bye, everyone.
01:27:46 Speaker 3
Bye-bye.
01:27:47 Speaker 3
Thank you.
01:27:49 Speaker 1
Bye.
01:27:52 Speaker 1
Thanks, Alexandra.
01:27:53 Speaker 1
Thanks.
01:27:55 Speaker 1
Thank you so much.
01:27:58 Speaker 3
See you soon.
01:27:59 Speaker 2
Take care.
01:27:59 Speaker 2
Bye.
01:28:00 Speaker 1
Bye-bye.
01:28:02 Speaker 1
Thanks, Natalie.
01:28:04 Speaker 1
You did great, Alexandra.
01:28:05 Speaker 1
You were wonderful.
01:28:06 Speaker 1
Thank you so much.
01:28:07 Speaker 1
Thank you.
01:28:16 Speaker 1
Bye, everybody.
01:28:47 Speaker 1
Hi.