Tag: Capacity

Estate and capacity planning for vacation properties across borders

When I was a boy, we had a modest cottage a couple of hours out of the city.  Just getting there was an adventure, as my parents piled six kids and a dog into a Datsun 510 — with no air conditioning.  

These days, it is not uncommon to have a vacation property in another province or outside the country altogether.  Whether that’s a family getaway, a snowbird retreat, or a new Canadian continuing to hold property ‘back home’, our society lives across borders like never before.  

With this modern mode of living comes complexity, particularly when it comes to estate and capacity planning.  

Wills and estate transfers

Generally a Canadian Will is effective to deal with a person’s real property (real estate) in the home province, and personal property wherever it may be.  In order to deal with real estate elsewhere, the Will would have be proven to the satisfaction of the courts/law in that other jurisdiction. While this is not an impossible task, it presents some additional cost, time and potential uncertainty.

With that in mind, it may be desirable to plan ahead by executing a second Will in that other jurisdiction.  In so doing, it is crucial that the second Will doesn’t inadvertently revoke the person’s main Will, or otherwise alter distribution.  Accordingly, there must be an open dialogue between the lawyers in the two jurisdictions.  

Discussions with the foreign lawyer should include gaining an understanding of tax obligations (currently and for the estate), and legal responsibilities of the executor.  This may necessitate adjustments in the home Will, or at least some informal guidance.   Alternatively, it could lead to naming a distinct second executor, with appropriate allocation of powers and constraints between the two.  This knowledge may even affect the owner’s longer term intentions for the property.

Incapacity while owning or being abroad

Arguably, the estate transfer is the easy situation as compared to having to respond to a crisis while an owner is living.  While an estate transfer is a property matter, there are both property and personal issues that can come up while a person is living, with attendant greater urgency.

Powers of attorney (POAs) and powers of attorney for personal care (PAPCs) have been a recommended part of the estate planning process for decades now.  And while it is usually intended that the power may be exercised wherever the grantor or property may be, challenges can crop up when foreign jurisdictions are involved. 

Some jurisdictions require these documents to be executed in a prescribed form, include specific language or otherwise be constrained in some manner that may be at odds with the home jurisdiction’s rules.  Even if there are no such formal impediments, there can be delays (and associated costs) as individuals, health care workers and businesses assure themselves of their obligations — perhaps even requiring them to seek their own legal advice before being able to take instructions. 

As with Wills, it may be desirable to have parallel documents drawn up in the foreign jurisdiction in order to expedite action at critical times.  In addition to the provisos about guarding against revocation and having open communications, some further questions should be canvassed: 

  • Can the same person be named in both jurisdictions?  Are there practical/logistical/linguistic concerns that may lean toward naming a different person in the foreign jurisdiction?  
  • What events may cause an appointment to be revoked (eg., marriage, separation, bankruptcy)?  If such rules differ between the jurisdictions, how will that be reconciled?  
  • What is the scope of the attorney’s activity for each of the jurisdictions?  Where there is a gap, how will this be handled?
  • If it is intended that the home jurisdiction attorney have ‘final say’, is this possible under the foreign jurisdiction’s rules?  How can an attorney be removed?
  • Is compensation allowed/required/prohibited, and do the planning documents together guard against double compensation?  
  • What checks are there to assure appropriate accounting and accountability for each attorney’s actions? 

Cross-border developments

These concerns have been attracting greater interest in recent years, with two major developments worth noting.

In the summer of 2015, the Uniform Law Conference of Canada tentatively approved a uniform law on cross-border recognition of powers of attorney for both property and health care, health care instructions and similar documents.  The Uniform Law Commission in the United States approved its draft in 2014.  Provinces and states that incorporate the recommendations into their domestic law will enable their residents’ documents to be effective in all reciprocating jurisdictions.

In the area of estates, as of August 17, 2015, a new cross-border succession regulation is in force in the European Union (except Denmark, the U.K. and Ireland).  It affects European citizens and residents, and European property held by non-residents.  Canadians should consult with their lawyer whether any action is required on their part.  

Personal directive to be followed irrespective of grantor’s best interests

At issue

For a few decades now, we have witnessed the introduction and modernization of laws dealing with powers of attorney and personal health directives (or similar terms according to the particular province).

These documents enable a person (as grantor) to give instructions to be carried out and wishes to be respected after that grantor has lost his or her own capacity to express those views personally.  They generally also allow the naming of one or more individuals who have the legal responsibility to act under these documents.

Still, this area of law is in its infancy, with case law just starting to emerge to interpret the very challenging issues that can give rise to conflict.  In particular, just how far will the law go to enforce a grantor’s earlier instructions that may arguably not be in the grantor’s best interests at a later date when mental capacity has been lost?

Sweiss v. Alberta Health Services, 2009 ABQB 691

After Samir Sweiss suffered severe irreversible brain damage, his treating physician put in place a do-not-rescuscitate order (DNR).  The effect would be to discontinue mechanical ventilation support, which conflicted with Mr. Sweiss’ previously signed declaration requiring that “all Islamic law be followed” in his care.  After a lengthy consideration of the law and facts, the judge upheld the DNR.

It was determined that the signed declaration did not meet the requirements of being a personal directive under Alberta law.  However, it was also noted that “in cases where a personal directive is found to exist, it would appear that, pursuant to the authority in the Personal Directives Act, the wishes, beliefs and values of the patient “must” be followed.” [Judge’s own emphasis]

B.M. v. K.S., 2015 NSSC 105 [March 2, 2015]

J.L. was 94 years old, living alone in her home with the assistance of full-time paid caregivers, 7 days/week and 24 hours/day.  The annual in-home care cost was between $240,000 and $250,000, with about $493,000 available in savings.

J.L.’s son B.M. was her delegate under a personal directive.  J.L.’s friend K.S. and BMO Trust Company were co-attorneys under a general power of attorney.  Evidence showed that J.L. had become mentally incapable, activating both the personal directive and power of attorney.

The personal directive included a specific provision with respect to “Home care”, which read: “I express the wish that my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged, including the assistance of a full-time caregiver to allow me to remain in my house, no matter what my physical or mental condition might be.”

B.M. testified his belief that his mother “spends her days with very little stimulation or interaction with others, and that she spends her time watching television, “disconnected” from what she is watching.”  In that light, he submitted to the court that it would be in J.L.’s best interest to be relocated to a local nursing home.  K.S. opposed moving J.L., and offered a contrary view that she was content with her home life.

The direction for the delegate and attorneys to work together was viewed by the judge as being J.L.’s acknowledgement of the financial constraints to remaining in the house.  At present, there were sufficient financial resources to support the home care.

The judge held that “the greatest weight is to be given to Mrs. L.’ Personal Directive”, and specifically commented that it was not for the court to determine whether or not that would fulfill her best interests.  It was ordered that J.L. would “remain in her home under the present caregiving and financial arrangements, for so long as it remains possible.”

Practice points

  1. Given the serious implications of these documents, legal advice can be beneficial, even though generally they may be executed without a lawyer’s assistance.
  2. Naming more than one person in these key decision-making roles can provide a useful check.
  3. As the B.M. v. K.S. case makes clear, the grantor’s own words can hold great sway.  While this may provide solace to a grantor, it also emphasizes the need for clear language that properly reflects the informed intentions of the grantor.   

End of life matters – Supreme Court rules on physician-assisted death

Nothing is more important than life itself.

It is tragic then that a woman in a grievous and irremediable medical condition may contemplate bringing her life to an end.  That she must turn to family, friends and her doctor to assist in that undertaking, adds even more to her burden.

And with the dilemma that those surrounding people could face severe criminal sanctions, her plight verges on untenable.

Undeniably, these are issues of great public importance, sufficiently so for the Supreme Court of Canada (SCC) to agree to hear this case that began in British Columbia.  On February 6, 2015, the Court struck down the Criminal Code provisions that prohibit a physician’s assistance in terminating life.

The lives involved

In 2009, Gloria Taylor was diagnosed with amyotrophic lateral sclerosis (or ALS), which causes progressive muscle weakness.  Patients first lose the use of their limbs, then speaking and eating functions, and eventually their breathing.  It is the same condition suffered by Sue Rodriquez, who unsuccessfully challenged the law on physician-assisted death at the Supreme Court in 1993.

Ms. Taylor launched this challenge in British Columbia, succeeding at trial.  However, she succumbed to her condition in the intervening time before the matter reached the SCC.

In 2008, Kay Carter was diagnosed with spinal stenosis, a painful and progressive condition that compresses the spinal cord.  As she described to her family, she did not want to live out her life as an “ironing board” lying flat in bed.  In 2010, with the secret assistance of her daughter and son-in-law, she traveled to a clinic in Switzerland, where she administered to herself a prescribed dose of sodium pentobarbital.

After Ms. Carter’s death, her daughter and son-in-law joined Ms. Taylor in her court action to press for the legalization of physician-assisted death in Canada.

Supreme Court of Canada rules

Relying on the Rodriguez decision, the BC Court of Appeal overturned the trial judge, leading the plaintiffs to appeal to the SCC.  In addition to the Attorneys General of Canada and British Columbia as respondents, the case attracted over 24 intervenor parties.

Interestingly, the only judge remaining on the court since Rodriguez is current Chief Justice McLachlin, who was then in the minority.  In this current unanimous decision, the Court commented that the legislative landscape had changed since 1993.  Eight jurisdictions (including 3 US states) now permit some form of assisted dying, reflecting an evolution in public sentiment.  Concurrently, these can serve as models to inform Canadian policy, particularly when considering the key issue of safeguards.

All parties and intervenors agreed on the object of the prohibition, being to protect vulnerable persons from being induced to commit suicide at a time of weakness.

However, the Court concluded that these particular provisions infringed a person’s right to life, liberty and security of the person under the Charter.  She may feel compelled to take her life while she is physically capable of doing so, even though she expects to continue to enjoy life after those particular physical controls have left her.  In sum, “she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes.  The choice is cruel.”

Criminal Code sections 14 and 241(b) were ruled void, but the finding was suspended for 12 months from the date of judgment, allowing the government to consider its response.

A call to financial advisors

To be clear, this case is not an authorization of euthanasia of the ill or aged.  The Court emphasized that the impugned provisions offended the rights of a competent adult in a “grievous and irremediable medical condition” who is clearly capable of giving his or her own consent to a physician.

Beyond the patient and doctor, this does not expand the authority of someone currently acting under a power of attorney, nor does it mean that such decisions may now be delegated under a newly executed document.  It should however prompt a frank discussion with a lawyer about the importance and coordination of powers of attorney, advance health directives and do-not-resuscitate (DNR) orders.

Outside the core legal concerns, financial advisors – particularly insurance advisors – have a central role to play in bringing some critical information to the table.

The item that immediately comes to mind is the potential effect on life insurance.  A common contract term purports to void coverage if the insured dies by suicide shortly after a policy is issued.  A person should be aware of the potential lost proceeds that may have been assumed to be going to surviving family.  For certainty in the interpretation of such contract terms, a legal opinion would be most prudent.

Though a less common type of coverage, critical illness insurance could also be affected.  CI policies usually require that the insured survives for a certain period of time in order for the proceeds to pay out.  This may be as brief as 30 days, or as long as six months or more.  (If the person dies earlier, the claim may be limited to a return of premiums.)  Entitlement could depend on timing and nature of diagnosis, especially where a claim is premised upon impairment of activities of daily living, or ADLs.

It is important that these potential problems are brought to light, and in a timely manner, should it become apparent that a client faces a challenging medical situation.  Delicate though it may be to raise initially, handled properly this can open a dialogue not only with the client directly, but (with appropriate permission) among all the person’s key professional advisors – financial, legal, medical and spiritual.

And finally, general communication with family and friends is essential.  To the extent of a person’s comfort level — and with the assistance and guidance of experienced counsellors — this can lead to better understanding for all involved, needed support at critical times, and as comfortable and dignified a death as can be managed.

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Stricken sections of the Criminal Code:

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

241(b). Every one who … (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.