IF A PERSON SUCCUMBS TO COVID-19 (WITH NO VALID POWER OF ATTORNEY), WHO MAKES THE HEALTH CARE DECISIONS? WHAT YOU NEED TO KNOW.

What happens when a person in Ontario becomes disabled or incapacitated, to the extent that the person cannot make decisions about his or her own health care or treatment? 

In short, someone else is authorized or appointed to make those decisions for the incapacitated person, subject to certain rules and duties imposed by law. 

However, we have a hierarchy of decision-making power in Ontario.

Here is an excellent article by Sydney Osmar of Hull & Hull explaining this hierarchy and how personal health care decisions are regulated for incapable people:  

"Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:

  1. The incapable person’s guardian of the person;
  2. The incapable person’s attorney for personal care;
  3. The incapable person’s representative appointed by the Consent and Capacity Board;
  4. The incapable person’s spouse or partner;
  5. A child or parent of the incapable person, or an agency that replaces the parent’s authority;
  6. A parent of the person who only has a right of access;
  7. A brother or sister of the incapable person; and
  8. Any other relative of the incapable person.

Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.

Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).

As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.

For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.

I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.

In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.

Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.

In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker." 

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MAKE YOUR ESTATE PLAN VIRTUALLY WITH YOUR LAWYER - OR WHAT YOU NEED TO KNOW TO MAKE A D-I-Y WILL AND POWERS OF ATTORNEY

By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.

This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.

HOLOGRAPH WILLS:

However, a person may still make a “holograph” will in Ontario.

A holograph will:

  • must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing - to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
  • you must sign it;
  • your document must contain these key provisions:
  • it identifies your document as your “Will”;
  • it revokes any prior will you may have made;
  • it appoints your trustee/executor;
  • it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
  • it contains a ‘power to sell’ clause for your trustee/executor; and
  • it must be dated and signed by you.

It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.

If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.

However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable. 

YOUR FORMAL WILL:

In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:

  1. the will must be in writing;
  2. the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
  3. the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
  4. at least two attesting witnesses sign/subscribe the will in your presence.

As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions. 

If you cannot read or write, you may be   unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.

The same issues may arise for a person who has physical difficulty with signing a will. 

While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.

If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

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YOU CAN STILL MAKE YOUR OWN WILL AND POWERS OF ATTORNEY, IF NECESSARY, IF YOU CANNOT VIRTUALLY DO IT WITH YOUR QUALIFIED LAWYER - WHAT YOU NEED TO KNOW TO MAKE A "HOLOGRAPH" WILL. ALSO - THE REQUIREMENTS FOR YOUR FORMAL WILL

By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.

This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.

HOLOGRAPH WILLS:

However, a person may still make a “holograph” will in Ontario.

A holograph will:

  • must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing - to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
  • you must sign it;
  • your document must contain these key provisions:
  • it identifies your document as your “Will”;
  • it revokes any prior will you may have made;
  • it appoints your trustee/executor;
  • it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
  • it contains a ‘power to sell’ clause for your trustee/executor; and
  • it must be dated and signed by you.

It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.

If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.

However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable. 

YOUR FORMAL WILL:

In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:

  1. the will must be in writing;
  2. the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
  3. the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
  4. at least two attesting witnesses sign/subscribe the will in your presence.

As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions. 

If you cannot read or write, you may be   unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.

The same issues may arise for a person who has physical difficulty with signing a will. 

While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.

If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

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YOU CAN NOW SIGN YOUR WILL OR POWER OF ATTORNEY VIRTUALLY (REMOTELY) WITH YOUR LAWYER - NEW EMERGENCY ORDER

An emergency “Order In Council” was made on April 7, 2020, under s. 7.1 of the Emergency Management and Civil Protection Act regarding the virtual commissioning and execution of wills.

Read the emergency order here: https://www.ontario.ca/search/orders-in-council

Now, by order under s. 7.0.2(4), of Ontario’s Emergency Management and Civil Protection Act, witnessing of wills and powers of attorney may be virtual (by “audio visual” means), provided that at least one person who is providing the service as a witness is a licensee pursuant to Ontario’s the Law Society Act (i.e., a lawyer or licensed paralegal). 

“Audio visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with each other in real time. 

The Order is not retroactive and will be in place for the duration of the declaration of emergency.

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GET 'R' DONE - NOVEMBER IS NATIONAL 'MAKE A WILL' MONTH

It’s estimated that more than half of Canadians do not have a will. This applies to many lawyers, too.

Why?

Well, many just don’t like to think about it.

Or -

“I can’t find time to get around to it”

“I can’t afford it right now”

“I don’t really need one”

Whatever the reason, your estate plan is very important. 

Here are a few of what I consider the important reasons to have a Will.

With no Will:

- your Estate may be given to family members you do not wish to benefit (under Ontario’s Succession Law Reform Act)

- your separated spouse may benefit from a share of your estate, which you may not intend

- if you have a common law spouse, they may not benefit from your estate, but that may not be your intention

- your step-children may not be entitled to any benefit from your estate, if you intend to give them a benefit

- if you have a spouse, that person may be entitled to $200,000 of your estate ‘off the top’ (or the whole estate, if your estate is valued at less than $200,000), with anything more than this amount divided between your spouse and your children surviving you

- if you have no spouse or no children/grandchildren, etc., your estate may be divided between your remote family members/relatives, some of whom you may not even know

- your children may be entitled to receive their share at age 18, with no trust or other oversight of the money, such a a trust for them being set up to manage the money until you wish for them to have it  

- if you have minor children, the money may have to be paid into Court, which is a costly, litigious experienced often

- you will not be able to appoint a guardian for your minor children (effective for 90 days if you do so in your Will), or express your wishes for who should care for your children, which is often considered by the Court if conflict arises

…to ensure the right person is administering your estate, and that the administration occurs in a costeffective and timely manner.

- someone will have to hire a lawyer to apply to the Court to be given authority to administer your estate, which is often costly and time-consuming, until which time your estate will likely be frozen

- someone may apply for this authority who you do not want to be in charge of administering your estate

- your estate may have to pay more estate administration taxes to the Ontario government (1.5% on the value of your assets, generally) than if you plan your estate plan properly, leaving less for your intended beneficiaries

-   if you have any foreign property, it can be complicated and costly to try to administer that if you have no Will, leaving less for your intended beneficiaries

- you may pay more taxes to the federal government than is necessary (you are deemed to dispose of your assets at fair market value on your death and there may be tax payable on your capital gains on your assets), but your Will can help you defer taxes on your death (example, property you give to your spouse on death may defer the tax payable into the future)

- most importantly, often passing away without a Will will increase the risk of litigation among your family members (and extensive fighting, lawyers’ fees and time in the Court system) – a legacy you would likely prefer to avoid if you have a proper estate plan in place

- you lose control over your estate if you do not have a Will – your estate may go to beneficiaires you did not intend

Having your estate plan done by a qualified lawyer is fairly inexpensive and, in my view, well worth the investment. If you do not have a Will, there is certainly a risk that you (through your estate) will pay far more ultimately to litigation lawyers if a dispute arises because you had not Will in place. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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DESIGNATING YOUR RRSPs FOR YOUR ESTATE PLAN - BEWARE OF THE TAX - OPTIONS TO AVOID CREATING LITIGATION AMONG YOUR BENEFICIARIES

Generally, you can designate a beneficiary for your RRSPs.

If you do, generally the RRSP will be paid to your designated beneficiary on your passing. The RRSP will not form part of your Estate and, therefore, not be subject to Ontario’s estate administration tax.

However, the problem: the federal Income Tax Act provides that, even though the RRSP will pass to your designated beneficiary (outside of your Estate), tax will be payable by your Estate on those funds as of your death (as if you had withdrawn those funds). This can create a burden on your Estate and its beneficiaries, which they may perceive as unfair. In other words, your designated beneficiary gets the RRSP funds, but not the corresponding tax burden created by the Income Tax Act on your death.

This often causes litigation, which you were likely trying to avoid in your Estate plan.

Careful estate planning is important, including considering potential tax issues that can arise on your death.

There are some ways to potentially avoid this, such as:

1.            Having an insurance policy, payable to your estate, for example, that will pay the tax burden on the RRSPs that you designate to someone on your death;

2.            Rolling over your RRSPs to your spouse or a dependent child, if you meet the specific requirements of the Income Tax Act to do so (consultation with an accountant or tax-experienced lawyer would be helpful); and/or

3.            Designate your Estate as the beneficiary of your RRSPs – although this will mean estate administration tax is likely payable on those funds, that is likely less of a financial burden to your beneficiaries than the alternative. The Estate can receive and pay the tax on the RRSP on your death using this approach. You can even specify in your estate plan that the net amount is payable to a specific person, such as the person you could have designated as your beneficiary on the RRSP.

Estate planning is important. To avoid unintended results and possibly creating conflict among your family member beneficiaries, creating your plan with a good, qualified estate planning lawyer is well worth the modest investment.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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