Archive for May, 2012

May 29, 2012

What census numbers say about our aging society

Recent Canadian census numbers certainly are no surprise but the effects of an aging society are being looked at ever more closely, as is illustrated in these articles.

May 17, 2012

Rasouli Capacity Case – Supreme Court Denies Motion to Quash Appeal

The Supreme Court of Canada has denied the motion of Mr. Rasouli’s family to quash the appeal by his medical practitioners seeking to overturn an order denying doctors the ability to discontinue life support without consent of Mr. Rasouli’s substitute decision-maker or an order of the Consent and Capacity Board.  The appeal will proceed in December.

Background to the case can be found here.

May 17, 2012

Nursing Home Fix Needs Provincial Dollars Industry Says–nursing-home-fix-needs-provincial-dollars-industry-says?bn=1

May 10, 2012

Here’s a Twist

Any practitioner in the area of estates law will know that there is no end to the disputes that arise between family members in connection with the administration of an estate or how an elderly parent should be cared for.  With respect to attorneys or committees for property and/or personal care of an aging parent, the disputes tend to be about the inappropriate or excessive use of funds entrusted to the attorney, usually for personal reasons, and possibly linked to neglect of the needs of the parent.  That is why a recent Manitoba case caught my eye – for another reason.

A dispute arose between siblings as to which should be named as committee of the property and personal care of their mother, who was found by the Court to suffer from mental incapacity.  One sibling had been named as attorney in a power of attorney executed by the mother and had been dealing with the mother’s care and finances for several years.  Her sister brought an application to have herself appointed as committee in place of the attorney.   The case is interesting because one of the grounds alleged for removing the attorney was that she had improperly dealt with the mother’s finances, not by diverting funds or speding extravagantly, but by not spending enough.  The opposing sister took the position that because the mother’s bank account showed little activity, such was evidence that the attorney was neglecting her mother’s needs.  The attorney’s evidence was that she had paid for several of her mother’s needs from her own funds, for which she was not seeking reimbursement.  The Court did not buy the opposing sister’s argument.

Seems like a case of “damned if you do, damned if you don’t”.

Parker Bruederlin v. Parker

May 7, 2012

Dhingra v. Dhingra Estate – Follow-up

In a recent post, we looked at the Dhingra case, where the issue before the Court was whether a husband, who had killed his wife, is entitled to proceeds of a life insurance policy for which he was the named beneficiary.  The husband was tried on a charge of second-degree murder and found not criminally responsible on account of mental disorder.  The Court found that he was entitled to the proceeds.

One of the issues before the Court was application of the Civil Remedies Act, 2001 (the “Act”).  The Act permits an application by the Attorney General (Ontario) for an order forfeiting property that is proceeds of unlawful activity.  “Unlawful activity” is defined broadly in the Act to include “an offence under an Act of Canada, Ontario or another province or territory of Canada”.  In addition, the Act provides that “proof that a person was … found not criminally responsible on account of mental disorder in respect of an offence is proof that the person committed the offence”.  For various reasons, the Court held that in these circumstances the Act did not apply.  One of those reasons was that there had been no application for forfeiture by the Attorney General.  However, the Court stayed its order for payment of the proceeds to the husband for 30 days to permit the Attorney General to consider whether it wished to make a claim to the funds.  It appears now that the A-G has decided that it will make a claim so the matter will come back before the Courts.  The case then remains alive and it appears that public policy on this issue remains to be defined.

May 4, 2012

Removal of Estate Trustees – Follow-up

In an earlier post, we looked at a case where the Court removed an estate trustee as a result of his conflict of interest as a beneficiary and his questionable actions in the administration of the trust.  The Court recently ruled on costs of that motion, finding that the party moving to remove the trustee is entitled to full indemnity for costs, payable by the former trustee personally (as opposed to the estate), resulting largely from his “reprehensible” conduct.

Venables v. Gordon Estate

May 3, 2012

Status of a Professional Partnership where a Partner Acts as Estate Trustee

An interesting issue of the status of a professional partnership where a partner acts as an estate trustee was recently considered by the Ontario Superior Court of Justice.   As a result of an agreement between the estate trustee and the accountancy firm of which he was a partner, a portion of the trustee’s compensation paid from the estate was paid to the partnership.  At issue on this motion for directions was whether, on a passing of accounts where there is a claim that compensation paid to the trustee was excessive, the firm itself should be added as a party.

On an analysis of the provisions of the Partnerships Act, and in particular s. 12 which establishes liability of partners for the misapplication of funds received by a firm or a partner, the Court determined that if it is found that the partner was acting within the scope of his duties as a partner of the firm, or that the firm approved of and authorized the partner administering the estate, the firm may be vicariously liable to repay some or all of the executor’s compensation found to have been improperly taken.  The firm was therefore added as a party to the passing of accounts.

The case raises an interesting issue for professionals acting as estate trustees.  The line between their actions as individuals and as partners in a firm is not always clear.  In this instance, the trustee’s use of firm resources to administer the estate, the use of firm letterhead and the application of funds received to general firm revenues, will all be factors in determining whether the firm, as well as the individual, is liable for overpayment of executor compensation.

Re Zucker Estate

May 1, 2012

Interesting Alzheimer’s Research

With an aging population, we can expect the amount of research into dementia and related diseases to explode in the years to come.  This Alzheimer’s research certainly looks interesting.