January 14, 2016

A Lesson from David Bowie’s Final Album

Source: A Lesson from David Bowie’s Final Album

January 10, 2016

Exciting Progress in Alzheimer’s Research

Given the dearth of new treatments for Alzheimer’s, it is good to read about the exciting advances made by Stanford University and the Univerity of Southampton.

See The Telegraph story on the Stanford research here.

See the BBC story on the University of Southampton research here.

Read about the University of Southampton research here.

 

October 1, 2015

Today is National Seniors Day

A day to recognize accomplishments and work to be done as, for the first time, Canada’s population counts more seniors than children.

September 4, 2015

More Trouble with Pension Benefits After Death

In a previous post, we looked at the issue of the definition of a “spouse” under the Pension Benefits Act where a deceased had divorced and was living in a common law relationship with another partner.  One of the key takeaways from the case was the importance of designating beneficiaries under pension plans so that the intentions of the pensioner are clear.  The importance of designation was emphasized again in the recent Nova Scotia Court of appeal case of MacEachen v. Minnikin.

In that case, under a separation agreement spouse number 2 was to be designated as beneficiary under the deceased’s Canada Post pension and he was not to change that designation before such time as he might remarry.  If he did not remarry, spouse number 2 would remain as beneficiary.  If the pensioner did remarry, spouse number 2 agreed under the separation agreement that “she will execute any and all necessary documents in order to release her as a beneficiary in the aforementioned plan”.

As you might guess, the pensioner did remarry but took no action to either change the beneficiary designation with the plan administrator or to require spouse number 2 to execute any document(s) to release her as a beneficiary.  Following the pensioner’s death, spouse number 3 brought an action seeking entitlement to survivorship benefits under the pension on the basis of unjust enrichment.  Both the Court at first instance and the Court of Appeal found in favour of spouse number 2.  On a legal analysis, spouse number 3 was not able to establish the elements of “unjust enrichment”.  However, for our purposes, it is the factual findings of the court that illustrate the lesson from this case.

With respect to the separation agreement, the Court found that the provision dealing with a release of spouse number 2 as beneficiary did not act to create a change of beneficiary but required further action (i.e. the deceased doing something to get that release in writing).  Furthermore, under the separation agreement the pensioner retained control over when a beneficiary change would be requested under the plan.  He also knew that he would be required to advise the plan administrator in writing of a change of beneficiary.  The pensioner had taken steps to change beneficiary designations under an insurance policy so presumably had turned his mind to beneficiary issues in some manner.  Given these findings, the Court was loathe to make a finding that would overturn the written beneficiary designation under the plan.

Could a tighter drafting of the separation agreement have changed the outcome of this case; for example stating clearly that upon the pensioner remarrying, spouse number 2 is deemed to have released any interest in the pension? – perhaps.  The obvious answer though it is that, for estate planning purposes, all potential assets must be addressed in their own context and parties cannot rely on other contracts to govern entitlement.

August 28, 2015

77% of Canadians Support Assisted Dying

This article in the Toronto Star is an interesting reflection of the sentiment of most Canadians on the subject of physician assisted dying.  It also illustrates somewhat of a divide between ordinary citizens and those who would be tasked with complying with the law in making a dignified death possible – physicians.

July 14, 2015

Penny Wise or Pound Foolish?

As a litigator, I see a lot of the downside to do-it-yourself estate planning.  The recent Ontario Court of Appeal decision in Foley v. McIntyre is a good example.  At issue were certain inter vivos (ie. before death) gifts of proceeds of savings bonds by a father to one of his two children.  While there may have been other reasons for the gifts, the decision appears to indicate that the primary reason for passing on funds before death was to avoid probate and any applicable estate taxes.  Avoiding probate may have valid estate planning objectives.  However, as in this case, consideration should be given to the potential for such gifts to be attacked.  Here, the gifts were left open to a claim by the non-recipient child under the doctrine of resulting trust.  Under this doctrine, the law presumes that on a transfer of money from a parent to a child, the child holds the funds in trust for the parent.  To rebut the presumption, the donee child is required to lead evidence that indeed the parent intended to bestow a gift.  If the gifting parent is now dead, that may not be so easy.

While the trial judge and the Court of Appeal found that there was sufficient evidence to rebut the presumption of resulting trust, I suggest that there were danger signs.  For example, the donee child also held power of attorney.  As well, two of the gifts were made after the parent had suffered a second stroke and was hospitalized.  Fortunately for the donee child, the parent had provided written instructions to his financial advisor regarding the gifts and the trial judge accepted the evidence of a geriatric psychiatrist who found the parent to be competent with respect to his finances (although not with respect to personal care) and rejected the evidence of an expert saying the opposite.

What is also interesting about this case is that the parent’s will left the savings bonds to the donnee child in any event.  Had he left the bonds in his estate, the resulting trust claim could not have been raised.  I suggest that the savings in probate fees and estate taxes were more than offset by the litigation costs incurred in fighting over the gifts made to avoid probate.

Now there may have been other very good reasons for the father in this case to make the gifts that he did.  Perhaps he wanted to see the good that the money could do before he died.  If that was the case – more power to him.  If however, avoiding probate is the only reason for gifting before death, a little professional advice will go a long way.

June 29, 2015

An Unfortunate Sign of the Times

Bankruptcies of seniors on the rise.  As reported by the CBC.

June 1, 2015

Dangers of Fraud/Forgery in Wills

I came across an interesting case recently from the Ontario Superior Court of Justice that should be a warning for everyone involved in the administration of wills.

In Paton Estate v. Ontario Lottery and Gaming Commission (“OLG”), two estates sued OLG for damages resulting from a loss of assets defrauded from the estates and gambled away in casinos operated by OLG.  The proceeding before the court was a motion to dismiss the action as disclosing no reasonable cause of action.  The motion succeeded and the action was dismissed as the court found that no duty at law exists in a casino to prevent problem gamblers from losing money.

What was striking about the case though was how the funds appear to have been stolen from the estate.  The fraudster was a clerk in the office of a lawyer assisting with real estate transactions and the administration of estates. Her actions are well known locally but primarily related to fraudulent real estate transactions, for which she was ultimately convicted on criminal charges.  On the facts as related in this action, she forged the name of at least one testator on a  will naming her as estate trustee.  She managed to sell two properties and gain access to $1,500,000.  Apparently, she also defrauded other estates amassing estate losses of over $4,000,000.  This was an extreme case and there was admitted professional misconduct by the overseeing (or rather not overseeing) lawyer for which he was disciplined.  Nonetheless, the case illustrates that estates are not immune from the frauds that have plagued real estate and mortgage lending lawyers for years.

While oversight of the clerk was clearly lacking and the lesson for lawyers is obvious, less obvious is the question of the care that should be taken by a prospective estate trustee to guard against potential frauds of this type.  I do not know many of the facts of this particular situation so make no comment on the actions of anyone involved with the estates.  It would appear though that the fraudster had to apply for and obtain a certificate of appointment of estate trustee before selling the estate properties.  Obtaining the appointment, listing and selling the properties takes time.  If a person knows that she or he has been named in the will as estate trustee and has accepted that role, what can they do to avoid potential fraud?

While the named trustee is entitled to rely on counsel representing the estate, his or her duty to the estate may require that she or he make reasonable inquiries of counsel regarding the status of the appointment and procedures going forward.  If it does not appear that progress is being made, or instructions do not appear to have been followed, closer examination of the actions of counsel may be required.  While it is unlikely that a prospective estate trustee will be able to root out a good fraudster, care should be taken at all steps of the administration process to reduce the risk.

February 9, 2015

Physician-Assisted Dying – The Supreme Court of Canada Charts a New Course

If you live in Canada, you have heard of the Supreme Court of Canada’s decision in Carter v. Canada, released February 6, 2015.  That decision declared void two sections of the Canadian Criminal Code to the extent that those sections prohibit “physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering”.  So how did this come about?

Section 14 of the Criminal Code provides that “no person is entitled to consent to have death inflicted on him”.  Any such consent does not absolve a person from criminal responsibility if they cause the death of that person.  Section 241(b) makes it an offence to aid or abet a person to commit suicide.  The combination of these two sections constitutes a ban on any person, including a physician, assisting another person in ending her life, regardless of the circumstances.

In Carter, the Supreme Court concluded that these sections, to the extent that they prohibit physician-assisted dying for competent persons suffering from grievous and irremediable medical conditions, are invalid because they deprive those persons of the right to life, liberty and security of the person guaranteed under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).  The prohibition was found to be “overbroad” and not in accordance with the principles of fundamental justice.  The Court found further that the Criminal Code provisions were not “saved” under section 1 of the Charter.

The argument before the Court was limited to “physician-assisted death”, which was defined as “the situation where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient”.  The decision therefore does not extend beyond physician-assisted death.

One obstacle before the Court in dealing with this case was the fact that it had already heard an appeal dealing with physician-assisted death and these same provisions of the Criminal Code in the 1993 Rodriquez case.  At that time, the Court upheld the prohibition against physician-assisted death.  What changed in the last two decades?  It turns out quite a bit.

While one of the tenets of our legal system is the principle of stare decisis (lower courts being bound by decisions of higher courts), trial courts can reconsider rulings of higher courts in two situations (1) “where a new legal issue is raised” and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.  The Supreme Court found that both conditions were met in this case.  While for lawyers the new legal issue is of interest, for most people (lawyers included) the real meat of the decision is in the fundamental shift in the physician-assisted death debate in the years since Rodriguez.  In particular the Court noted that:

  1. Notwithstanding Rodriguez, between 1991 and 2010 no less than six private members bills dealing with physician-assisted dying were debated by the House of Commons and its committees;
  2. Recent reports have come down in favour of reform of the prohibition;
  3. When Rodriguez was decided, there were no other jurisdictions that permitted assistance in dying.  By 2010, eight jurisdictions permitted some form of assisted dying.

In other words, the Court found that Rodriguez was a product of its time.  Times have changed.

In coming to its conclusion, the Supreme Court agreed with the trial judge’s assessment of most of the evidence.  Of particular interest, the Court found that:

  1. Section 7 rights encompass life, liberty and security of the person during the passage to death, recognizing that the sanctity of life is no longer seen to require that all human life be preserved “at all costs”;
  2. The prohibition deprives some individuals of life by, in effect, forcing them to take their own lives prematurely, for fear that they will be incapable of doing so when they reach the point where suffering is intolerable;
  3. An individual’s response to a grievous and irremediable medical condition is a matter critical to the person’s dignity and autonomy.  While a competent person is entitled to give informed consent to the refusal of life sustaining treatment, the prohibition does not allow them use informed consent to request a physician’s assistance in dying.  This interferes with the person’s ability to make decisions concerning their bodily integrity and medical care and exposes them to intolerable suffering, impinging the liberty and security of the person.

However, as the Court noted, the right to life, liberty and security of the person is not absolute.  Those rights can be restricted provided the restriction does not violate the principals of fundamental justice.  Here, the Court found that the prohibition did violate the principals of fundamental justice because it was overly broad.  The Court found that the object of the law, to “protect vulnerable persons from being induced to commit suicide at a time of weakness”, impacted persons other that vulnerable persons.  It also affects competent, informed people who have shown a persistent wish to end their own lives.

Having found a Charter right infringement, the Court had to determine whether the “saving provision” of section 1 of the Charter would allow the prohibition to stand.  Section 1 will uphold a law that breaches section 7 of the Charter provided the law is (1) rationally connected to the law’s objective (2) minimally impairs the right in question and (3) there is proportionality between the deleterious and salutary effects of the law.  The argument here came down to whether the law prohibiting physician-assisted death was a minimal impairment to the right to life, liberty and security of the person.  Canada argued that the impairment was minimal because it was not always possible to determine which individuals are vulnerable and therefore the general prohibition was necessary to protect from error.  It also put forward the “slippery slope” argument that allowing physician-assisted dying will lead to assisted dying in other circumstances.

The Court rejected these arguments and looked primarily to the standard of informed consent in Canada.  With informed consent, individuals make decisions about their lives and potential death all the time.  The Court found that physicians are able to determine whether a person is competent to assess alternatives and to make decisions regarding life and death. They are likewise able to determine whether such decisions are made voluntarily, free from coercion, undue influence and ambivalence.  The Court agreed with the trial judge that a permissive regime of physician-assisted dying, with properly designed safeguards, is capable of protecting vulnerable people from abuse and error.  The Court recognized that there are risks but stated that a “carefully designed and managed system is capable of adequately addressing them”.  The Court also found that such a system addresses any concern of a “slippery slope”.  The Court’s finding was bolstered by a lack of evidence of a heightened risk to people with disabilities in jurisdictions that allow for physician-assisted dying.

So what happens now?  The Court suspended its declaration of invalidity of sections 14 and 241(b) for 12 months to permit Parliament to enact provisions so as to comply with this ruling.  The decision itself does not set out circumstances whereby physician-assisted dying can be carried out.  It will be up to lawmakers to implement a regime that allows for physician-assisted dying but protects the vulnerable.  Already this has become a matter of great debate as the Supreme Court has provided no definition beyond a “grievous and irremediable medical condition that causes enduring and intolerable suffering”.  Perhaps tellingly, the Court did not restrict itself to terminal conditions (although query what “irremediable” means in this context). It also left a great degree of subjectivity to the analysis as only the individual can determine what is “intolerable” to her or him.  But how should intolerability be assessed by physicians?  It will certainly be an interesting debate to follow over the next year.

December 9, 2014

Mediation in Elder Law

I often focus in this blog on interesting cases dealing with points of law in estates and elder law.  However, I read an interesting article in this week’s Lawyers Weekly by Marilyn Piccini Roy dealing with the important role of mediation and the mediator in elder law.  Definitely worth a look.

Please note:  The original hyperlink used in this post was not functional.  I believe that the problem has been corrected.  My apologies.