Changes in laws affecting seniors over the last 50 years

My latest column in the Spring issue of News & Views, the magazine of the Alberta Retired Teachers' Association (ARTA) is now out. As this year marks the 50th anniversary of ARTA, I was asked to write about how legal issues for seniors have changed over the last 50 years. So in this article I cover planning for incapacity, powers of attorney, personal directives, grandparents' rights and changes to the Alberta Wills and Succession Act that may require grandparents raising grandchildren to support those grandchildren in their wills. Lots of changes to talk about! Click here and scroll down to page 8.

The basic estate planning documents that everybody needs

The term "estate planning" sometimes makes people think of millionaires who live behind wrought iron gates with a butler at the door. But all it really means is that you've put plans in place to deal with your eventual passing and for the possibility of losing your mental capacity. Estate planning isn't just for the wealthy. Everyone with a family needs to think about estate planning.

Most people know they need a will, even though a good half of Canadian adults don't have one. Even with a valid will in place, you haven't fully prepared yourself to protect your family and your assets. Your will does nothing to help you or your loved ones if you are alive but unable to make decisions due to dementia, illness or injury.

Here are the basic documents that everybody should have:

1.  A valid will that is kept up to date to reflect changes in your life. The will should be prepared as part of a bigger estate planning picture that takes into consideration your joint property, your designated beneficiaries on policies and plans, your insurance coverage and of course your plans for your family members left behind. All of these things must be co-ordinated so that your documents don't contradict each other or create confusion that will end up being sorted out by the courts.

2.  An Enduring Power of Attorney, which is also called a Continuing Power of Attorney, or a Power of Attorney for Property. This document allows you to appoint someone to make financial decisions for you if you should be unable to do so for yourself. Most commonly this document is used when a person develops dementia, but it may also be used if you should be severely injured in an accident or become very ill.

3.  An Advance Health Care Directive, also called a Personal Directive or Health Care Proxy. The person you name in this document will be able to make decisions for you about medical issues, health care and personal issues. The document should also contain your instructions on end-of-life decisions.

The above three documents are usually sufficient for individuals whose estates are not complicated. Business owners may find that they need additional estate planning documents, such as:

4.  Shareholders' Agreement, sometimes called a buy/sell agreement. While not solely an estate planning document, a shareholders' agreement should address what is to happen with shares of a privately held company if the owner should pass away or lose mental capacity.

5.  Life insurance to fund the buy/sell agreement.

6.  A written business succession plan that sets out who is to take over the family business, and how that plan is to be implemented financially.

7.  A holding company may be needed to funnel excess cash out of an operating company to improve the potential tax situation.

Individuals differ, and so do their estate-planning needs. You may find that you have specific goals that will require additional documents to be made. For example, you may wish to leave a Memorandum of Personal Effects that gives certain items to specific people on your passing. You may wish to leave a Letter to Executor that leaves personal messages, gives further explanations or expresses wishes to your family members.

Start by making sure that you have the first three documents in place and keep them up to date. An experienced estate planning lawyer can help you decide what else you might need or want to protect your loved ones.

Case emphasizes need for end-of-life discussions

Have you ever wondered whether it's worthwhile to have a Health Care Directive (also called a health care proxy, personal directive, power of attorney for personal care) made up to express your wishes? If you've ever considered it unimportant,click here to have a look at this article from www.advocatedaily.com. Right now, the Supreme Court of Canada is deciding an essential issue for all of us. They are looking whether doctors have to listen to the person who was appointed under a health care directive when the doctors think it's time to pull the plug on a person in a vegetative state.

The case centres around Mr. Hassan Rasouli. Mr. Rasouli's doctors believe that he is in a vegetative state and will never recover higher functioning. His wife was named by Mr. Rasouli in a health care directive and opposed the doctors' suggestion that life support be discontinued. Had she given her consent, life support would have been withdrawn, allowing Mr. Rasouli to pass away naturally.

The court will decide whether in a case like this, the doctors need the consent of a substitute decision maker to give treatment that they see as ineffective or inapproprite. In case you are getting the impression that the doctors are fighting to end this man's life, please understand that the doctors need and want this clarification by our  higher court as much as Mr. Rasouli's family - and the families of anyone who is on life support - want it. Everyone needs to know where this issue stands.

Each of us should have this document prepared appointing a trusted loved one or friend, and discuss our wishes with that person.

Fee for acting under a Living Will? And can I ignore funeral instructions?

The role of the executor is challenging, there is no question about that. I know that many of you reading this blog are executors looking for practical information about how to deal with the estate you're working on. The following question (which is really two questions) came in from a reader in exactly that situation, so I'm sharing it with you in case you're in a similar spot.

Here's the question:

"Can an executor charge fees before the person passes away if that person is in charge of the living will. Also does the executor have to follow the will to the tee for the funeral arrangements?"

 

First of all, a person whose authority comes from a will can't do anything with that will, including taking a fee, while the testator (the person whose will it is) is alive.

 

When you talk about the Living Will, I am going to assume that you're actually talking about a type of health care directive or advance directive. These directives usually include the kind of end-of-life instructions you see in a Living Will, but they also do much more. They usually appoint someone to make decisions, and as you say you are "in charge of" the document, this sounds more like what you are dealing with.

 

The law in Canada generally does not allow a person acting under a health care directive to charge a fee. You can, however, usually recover reasonable expenses. Please understand that this has absolutely nothing to do with the will. You have to follow the law as it applies to the health care directive, which varies from province to province.

 

As for your second question, the executor doesn't have to follow the will to a tee regarding the funeral. In fact, legally the executor can totally ignore what the will says about the funeral, because the funeral wishes in a will are a wish only. They are not legally binding. The law says that if the executor has the legal responsibility to dispose of the body, then he or she must have the legal right to decide the best way to do that.

 

Please keep in mind the emotional fall-out that can happen if you decide not to follow the will. It may upset people, to put it mildly. Consider what damage will be done to family harmony, and think about how you will deal with this. I'm not saying that you can't do the funeral the way you think best; I'm saying you may have to gently explain to family members why you made a different decision.

 

I'm glad you decided to ask for input before taking these steps. Sometimes just asking helps avoid real problems.

Can my health care PoA be "durable"?

Here's another good reader question. This one is asking about whether health care directives can be "durable" powers of attorney. I find that people get confused about how the concept of durability affects a document, so I'd like to answer the question here for everyone to read. Here's the question:

"Can any type of power of attorney document be durable? Like can I have a Durable Heath Care Power of Attorney Form?"

There are two basic kinds of documents that name someone to act for another person when that person loses capacity to make his or her own decisions. One is a document that gives someone - called the attorney - the authority to make decisions about money and property. Most of the time that document is simply called a Power of Attorney, though in some places it's also called Power of Attorney for Property.

The other kind of document is one that gives someone the authority to act under health, medical or person decisions. This goes by many names, including Personal Directive, Health Care Proxy, Advance Health Care Directive and Power of Attorney for Health Care. This is the type that the reader's question addresses.

The basic reason for making either of these documents is to have someone of your choice lined up to make decisions if you can't do that any more due to loss of mental capacity. The word "durable", also called "enduring" or "continuing", means that the document endures through your loss of capacity, should it happen. That's the whole point of it - to have something that covers you in that situation.

In other words, yes, these documents can and should be "durable".

A person who acts under a standard health care document ONLY does so when the person can't speak for himself or herself, therefore that document must be durable. If the document wasn't "durable" and collapsed when you lost capacity, it would be little more than a waste of paper.

What wishes should a Power of Attorney for Personal Care express?

In this article, Mark Handelman of Whaley Estate Litigation does a great job of talking about Powers of Attorney for Personal Care (also called Personal Directives or Health-care Directives). I recommend that you read it if you are wondering how to communicate your end-of-life decisions.

When you see an estate planning lawyer, you will of course talk about your wills and how your property is going to be distributed after your death. You should also expect to discuss your plans for mental incapacity. You should name someone to look after health care decisions and someone (perhaps the same person but it doesn't have to be) to look after financial decisions. Most lawyers who specialize in estate planning will ensure that you have this whole package in place.

Best of all, Mr. Handelman includes some sample wording, and some legal humour as well. Click here to read this very good article.

Do Not Resuscitate

This brief but thought-provoking article from Contemporary Retirement Coaching raises an important issue: too many people fail to leave a health directive document that lets others know of their wishes in an end-of-life situation. Do you have a medical directive in place? Click here to read the article.

A checklist of things to consider when making your estate plan (part 1 of 2)

This brief but informative article is from Dennis Duffy who blogs at http://www.duffylawoffice.com/ . In it he talks about the basic documents you should have in your estate plan. Note that the Americans use Living Wills. We don't. We use a document that is called a Personal Directive, Advance Directive, or Health Care Directive depending on where you live. Click here to read the article.

How to resolve end-of-life care conflicts

Though I sincerely wish that none of you ever find yourself in the midst of a dispute over end-of-life care for a loved one, I know it does happen. Perhaps this article from today's Globe and Mail will shed some light on the situation. Click here to read the article.

Five reasons to have a health care directive

Much of estate planning focuses on wills, as well it should, but planning for incapacity is equally as important. Of the documents that I consider the "basics" of an estate plan, the health care directive is the one that most people seem to believe is optional. In my view, there are many good reasons to put a health care directive in place, and here are my top five:

1.  When you complete a health care directive, you choose who will be your decision-maker and spokesperson. If you don't do this document and you lose capacity, you may have no say in who is named by the court to represent you.

2.  In many jurisdictions, you can choose the level of help you want. This may range from supported decision-making for a specific type of decision (such as selection of housing) through to complete legal representation. By choosing the level of assistance you believe you need, you may head off well-meaning but intrusive help that you don't particularly welcome.

3.  Health care directives are too often simply a cookie-cutter document, but by using an estate-planning specialist to prepare yours, you can include instructions that are important to you and helpful to your family. For instance, you could express wishes about living somewhere you may worship at the church of your choice, about eating Kosher, about keeping your pet with you, about refusing blood transfusions, or about which of your children you'd like to live with.

4.  Making and documenting your decisions ahead of need is a gift to your family members. Never underestimate the value to your spouse, children and extended family in preventing distress, guilt and disputes.

5.  Having this document prepared ahead of need while you're healthy is a heck of a lot cheaper and easier than having someone in your family go to court to be appointed as your health care guardian.

When you have your will prepared, or next time you have your will updated, you should have a health care directive (aka health care proxy, personal directive, or advance directive) prepared as well.

Failure to plan for incapacity may lead to more intrusive help later

Nobody really wants to envision their future selves as incapacitated to the point of not being able to manage their own money and health care. Unfortunately, refusing to think about it doesn't prevent it. We don't know in advance whether will we suffer from an injury or health issue that will cause a loss of mental capacity, but it's essential that we have a plan in place to deal with it if it happens.

The usual documents put into place to deal with future incapacity are an Enduring (or Continuing or Durable, depending on where you live) Power of Attorney and a Personal Directive (or Health Care Directive, Advance Directive or Health Care Proxy). When you put these documents into place, you choose who will represent you when you lose capacity. You can set guidelines and limits on what they can do. You can express your wishes about how you want to live.

Having these documents in place greatly decreases the chance that anyone will have to apply to the courts to be appointed as a guardian or trustee (or committee) for you. Instead of having a court-appointed person who has absolute control over every aspect of your health care with no input from you, you can name someone you trust and give them some guidelines.

Instead of having a court-appointed trustee who is not of your choosing and who can sell or re-arrange your financial matters as he or she thinks best, you can give some instructions on what to do with specific assets or business matters. You can build in terms that allow other family members to be informed of what is happening or build in added accountability for your representative. You can retain more dignity and independence.

The bottom line is that with these documents in place, you retain some choice and control. Without them, other people might one day have to choose for you, and impose their wishes and ideas on you whether you like it or not.

Financially, setting up documents in advance is better too. Each of the documents here will only cost a couple of hundred dollars. Applying to the courts to become a trustee, with all of the paperwork and time involved, is much more expensive (and that comes out of your pocket, not the pocket of the person who is applying).

Planning for incapacity is just as important as planning for your eventual death. Make an Enduring Power of Attorney and Personal Directive a part of your estate planning.

Labour of love

How much should a family member acting as a caregiver for an aging parent charge for that care? What if the family member is also the Power of Attorney and therefore in charge of the parent's money? A recent case from the Ontario Superior Court of Justice discusses that topic. Click here to read a blog post from All About Estates. The author of the post seems to believe that the courts are undervaluing the family member's services and I have to agree with her.

How do you donate your body to science?

If you've ever wondered about leaving your body to science - which generally means a medical school - click here to read some thoughts and advice from the folks at All About Estates.

In my practice, I have met a few people who have requested that their bodies be left to science for research and educational purposes. The number is small compared to the number of people who want to donate organs or tissues for transplant purposes. Note that the comments made in the All About Estates post are for people who want to donate their whole bodies. Many people also address organ donation in their Personal Directive or Health Care Directive.

Is AND better than DNR?

I've had a problem for a long time with the over-use and misuse of the DNR ("do not resuscitate") message found in health care directives. It's poorly understood by the public for one thing. And according to this article in the New York Times, there is no consistency in use between hospitals, doctors and nurses. A new phrase - "allow natural death" - is being proposed instead. Click here to read the article. Let me know what you think.

Estate Planning For Canadians

The link below goes to an article on Investopedia which talks about the basics of an estate plan, including tax planning. It talks about the three main documents that go into most people's estate planning. These are the three documents you see me blogging about all the time, but it's always good to see someone else's take on them. Click on the link below to read the article. You'll notice that the article has plenty of links to other good information as well.

Estate Planning For Canadians

Are we ready to die with dignity?

This Globe and Mail article is right when it says that end-of-life decisions are not talked about enough between family members. I know it's not a fun thing to talk about; I've witnessed enough tears in my office just talking about end-of-life matters in general to know that nobody's enjoying the topic. But it's so important, as this article mentions. Please click here to read it and gain some perspective on these issues. The attached photo is also from that article.

Can an executor take charge while the testator is still alive?

Estate planners will tell you that you need to make a Will, but that you also need to have an Enduring Power of Attorney and Health Care Directive as well. We can't see the future, so we have to plan for all reasonable eventualities. Even though that message has been out there for years, there are still plenty of people who only make a Will and don't address incapacity. There are plenty of reasons for this, from trying to keep expenses low to believing that fancy documents are only for rich people.

Another reason that some people don't take their planning a step further and have incapacity documents prepared is that they don't truly understand the difference between what an executor does for them and what an Attorney under Power of Attorney does for them. When I talk to people about powers of attorney, they sometimes say that they don't need them because they've covered it off in their Wills. For example, seniors sometimes think that because they've named their son or daughter in the Will, the son or daughter will be able to access bank accounts, records, tax information etc on behalf of the parents while the parents are still living. Unfortunately, they are completely wrong.

A Will does nothing at all for you until you have passed away. Appointing someone as your executor gives them absolutely no power at all to act on your behalf while you are alive.

If you want someone to have the ability and the right to act for you, deal with your accounts or investments or home, or make health care decisions for you, you  need more than a Will. To enable someone to help you while you are alive, you need an Enduring (Continuing, Durable) Power of Attorney for financial decisions and a Health Care Directive for health, medical and personal decisions. in some parts of Canada, an option for medical and personal decisions is a Representation Agreement or other supported decision-making document.

If you don't make these documents and you lose your capacity to make your own decisions, your Will still doesn't help. In that case, someone in your family may have to apply to the courts to become a court-appointed trustee or guardian. At that point you will have completely lost control of the decision about who can act on your behalf.

It's scary to think about the number of people who really think they've got something covered when in fact they haven't got a single thing in place to help them.

Euthanasia - is it coming to Canada?

As an estate lawyer who is involved in planning that includes Personal Directives, I like to keep an eye on the law surrounding euthanasia for the terminally ill. For an update of where we are right now, read this article by Jasmine Sweatman.

Opposite of DNR

Not long ago I received a question on this blog that asked me how to word a personal directive so that "the opposite of DNR" was achieved. The person didn't want "some idiot pulling the plug" and wanted to know how to word the document so that "the only reason I should be dead is old age". I've heard similar comments a number of times, so I believe this question represents the thoughts of many people.

I don't believe that there is any generic wording that suits everyone, and I am not prepared to suggest any wording of any document to someone when I don't know all of the relevant facts. However, I do want to talk about the general issues that arise from this person's question. I believe that many people don't really understand how the Personal Directive (aka heath care directive, advance directive, power of attorney for health) works.

The first thing that strikes me is that the person asking me this question shares a misconception with a number of other people I've met. That is, that signing a directive somehow gives medical professionals permission to prematurely and frivolously end someone's life. That is simply not the case,. The permission given in the directive says only that if the person is in a vegetatative state and no matter what is done, the person will never recover, then it is alright to discontinue artificial support. Nowhere are you giving permission for someone to kill you should you inadvertently fall asleep and not be able to watch your back. I doubt there are many practicing doctors out there who can't tell a functioning person from one in a  vegetative state. Personal Directives usually also contain specific instructions that direct that nutrition, hydration and pain-killers continued to be administered.

The doctors I've talked to about this tell me that if they believe that life support should be discontinued, they talk to the family and set a date for it. There is nothing hasty or spontaneous about it and there is plenty of time for the family to talk it over with each other and with the doctors.

Many people express to me a fear that the plug will be pulled too soon, and they will lose the chance to recover. As has been pointed out to me many times during these discussions, people do recover from comas. The problem here is that a person for whom life support is going to be discontinued is not in a coma. A person on artificial life support has no brain function at all. The only thing keeping them alive is a machine that pumps their heart or their lungs. What are the odds of recovery?

Also remember that the person who has the authority to speak for you on health decisions is not the doctor. Only the person you chose and named in your document may communicate your written instructions about how to handle the situation. So to have someone mistakenly try to remove life support, not only would the doctor have to be "some idiot", your chosen representative would also have to be one.

I'm glad the issue was raised, as this is one of the concerns bothering people who are trying to do their estate plans and trying to understand how the Personal directive document works.

Dynamic planning secures the future

This article from today's National Post talks about how all the parts of an estate plan have to work together, and how to achieve that. It talks about Scotia Private Client Group - where I just happen to work - as a place where you can get all of that done in one place. Click here to read the article.