Wills and Guardianship of Children

If you thought it was a bad idea from a financial point of view to not have a will, it can get even worse.

There is a tragic case in the media at the moment that involves custody of the three children of a woman who was murdered. Angila Wilson’s former common law partner is accused of having killed her almost a year ago. Ms. Wilson’s brother and his wife are seeking custody, and according to them, the children’s father’s family is also seeking custody. Meanwhile the children are languishing in temporary foster care with the B.C. Ministry of Children and Family Development.

The case may be complicated by the fact that custody is not the same as guardianship, and that the father of the children likely still has legal guardianship. I don’t know the specifics of why it is taking so long in this particular case to get the kids into a permanent home, and I don’t know whether Angila had made a will or not.

What I do know is that it is extremely important for parents to make provision in their wills for what happens to their children if they are suddenly no longer there to look after them. Murder is highly unusual (thank goodness), but accidental death or sudden devastating illness (heart attack, aneurism, etc.) can also occur. Making arrangements for guardianship of young children is even more critical for single parents.

For a two parent family, if one parent dies unexpectedly, the surviving parent becomes the sole guardian. For a single parent family, if that parent dies, the biological parent may have rights to act as guardian but that is not automatic.

If both parents are killed in an accident, then family members on both sides may apply for guardianship of the kids. Blood relatives are preferred by the courts, and where ethnic or racial considerations are involved, such as for first nations children, one of the criteria for custody and guardianship is ensuring that the children keep a close connection with their ancestral background.

Keep in mind also that just because a person lives with the parent of a child, even if they marry, that person does not automatically become the guardian of the child. In such a case, the death of the parent could result in a child being removed from a home she has known for most of her life, because another relative has successfully applied for guardianship.

It is possible provide for guardianship in your will in case you die before your children are 19 years old. Of course if there is a second guardian already, that person would remain as guardian if you die. If there isn’t another guardian already, or if that person dies at the same time as you, then you had better appoint someone in your will, because otherwise there could be a battle about who gets to raise your children.


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Supreme Court of Canada Rules on Physician Assisted Suicide

The long awaited ruling from the Supreme Court of Canada regarding the legality of physician-assisted suicide came down today. The court ruled unanimously that a competent adult person will no longer be prohibited by the Criminal Code from seeking assistance in ending his or her life.

The justices found that the prohibition on physician assisted dying infringes Section 7 of the Charter, which protects the right to life, liberty and security of the person, in a manner that is not in accordance with the principles of fundamental justice.

The court’s reasoning was that because a person may see the quality of life, and abilities to act without help, diminish to the point where he or she may no longer be able to commit suicide when life becomes intolerable, that person may feel forced to end his or her life early.

The court said:
“The appeal (of the BC Supreme Court ruling) is allowed. We would issue the following declaration, which is suspended for 12 months:
Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

The suspension of the declaration of invalidity for 12 months is meant to allow Parliament to enact replacement legislation, should it choose to do so.

What does this mean for the average person? At this point, it only means that you should think about this new option and discuss the matter with those close to you. Nothing will actually change for a year.

One thing that should be made very clear is that physician assisted suicide is not the same as euthanasia. It does not seem likely that you will be able to give advance instructions to an alternate decision maker in a living will or representation agreement. It may also not be something that you will be able to specify in an Advance Directive.

My belief is that Parliament will enact very restrictive legislation limiting the ability to request physician assisted suicide to those people who are competent at the time the request is made, and that the request may only be made once the suffering has already become intolerable.  Doctors will be able to decide whether they wish to perform the proceedure or not.

It will be necessary for each province to amend its legislation such as health care consent laws and the laws governing the giving of advance directives and appointment of alternate decision makers.

The issue of physician assisted suicide in Canada is far from over, and we will be following further developments. If you have any questions about how this may impact your end-of-life planning, please contact us to discuss your current options.

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New Year’s Resolution: Insurance

It’s that time of year, in case you hadn’t noticed.  The last of the turkey leftovers have made their appearance, cleverly disguised in a “pot pie”.  New Year’s plans are under-way (mine include staying up until at least 11 PM on new year’s eve) and the pressure is on to make a resolution or two.

Well, here is one to think about.  Resolve to get adequately insured!

What brings that on, you ask?  Here’s what.  This morning in the paper, front and centre, was a very sad article about a young woman, single mom, whose car had been stolen.  Guess what?  Some bright spark of a car sales man had advised her not to bother with comprehensive insurance (that’s the kind that includes theft coverage, among other things) to save a few bucks.  Now I appreciate that saving a few dollars at this time of year might have seemed like a good idea;  I mean, what’s the worst that could happen, right?

This is what:

The car was stolen, used for a joy-ride by some brain-dead twerps, including a robbery and property damage, not just to the car, but to other people’s property.  The car is now in police hands, who will tow it and store it.  Guess who gets to pay for all of that?   Not the insurance company, because, well, there was no insurance.  So this poor young woman, who got some really bad advice about saving a few bucks, will get to shell out money she doesn’t have.  [Since this was first published, some kind-hearted people have offered her money, a new car, and replacements for the kids’ car seats that were also lost].

Every year at this time you hear about a house that burned down because the Christmas tree caught fire, or someone fell asleep on the couch with a lit cigarette.  As if that isn’t bad enough, there is always the added heartbreak that they lost everything and didn’t have insurance.

What does any of this have to do with wills and estates?  Just like a reluctance to buy adequate car or house insurance, a lot of people don’t think it’s important to have life insurance, disability insurance, or critical illness insurance.

Yes, insurance companies get a bad rap, and rightly so.  They are truly at the bottom of the barrel when it comes to customer satisfaction, and they seem to go out of their way to confirm people’s cynicism about them.  The recent examples of people losing their life savings because they thought they were covered for medical issues, only to have the insurer weasel out under a technicality, certainly don’t help.

But seriously, folks, what will happen to your family if you suddenly drop out of the picture?  Will they be able to afford to even bury you?  Who is going to pay the mortgage? (and I’m not suggesting you buy your mortgage company’s insurance, that’s just a bad deal…get some real life insurance).  What happens to you if you get really sick and can’t work?  Is EI really going to cut it?

You may be fortunate enough to have a good plan at work.  If you do, take a look at the policy so you know what you are covered for, and what isn’t covered.  If you aren’t sure, ask.

If you don’t have insurance at work, ask around to find a good insurance rep or two.  Ask a ton of questions.  You’ll need to talk to a few people, because different companies sell different types of insurance.  But do it.  Make a resolution to find out what you need and then get it.  Before it’s too late and you find yourself wishing you had.

Happy New Year!

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When in Rome….

Ever dreamed of owning a little pied-a-terre in Paris or Provence, or fixing up an old farmhouse overlooking the vineyards in Italy? Maybe you have inherited such a place from relatives who still live in the “old country.”

Canadians of European descent who have close ties with the country of their ancestors might be aware that most countries in Europe have fixed rules about who may inherit an estate. When it comes to real estate (“immovables”), the forced heirship rules of the country where the property is located will apply, no matter what your Will says about it.

The good news is that in most of the European Union, that will change as of August 17, 2015, due to EU regulation 650/2012, otherwise known as Brussels IV.   I’ll just refer to it as the “Regulation.”

After August 17th 2015, a Canadian who has immovables in a participating EU country can choose either the law of the country of their habitual residence (which is defined in the Regulation, sort of), or the law of their nationality to govern the devolution of their EU estate, provided they have taken appropriate action before their death. Appropriate action would be to make a designation in their Will as to which law should apply to the immovable in question.

The only EU countries not participating in the changes brought about by the Regulation are the UK, Ireland and Denmark, which have opted out. If you own immovable property there, you should, of course, seek appropriate legal advice about the laws of succession in the relevant country.

If no choice of law designation is made, the default position is that the succession of the EU immovable property will be governed by the country of their habitual residence. This could have serious negative consequences for a Canadian living or working abroad.

As an example, the estate of a Canadian living or working in the Hague who does not amend her Will (whether it is a Canadian or Dutch Will) may find that the apartment she purchased in Paris is subject to forced heirship under Dutch law.

The Regulation requires that appropriate action be taken during the lifetime of the owner of the European real property. That means making a nomination in a Will which is valid in the EU country where the property is situated, stating which law will apply to their real estate. For that reason it is vitally important, for those who own real property in the EU, to determine if their Canadian-made Will would be valid in the country where the property is located, and if it is not, to ensure that a Will dealing with that property is made in the relevant country.

Although the Regulation does not come into effect until August 2015, if you are the owner of EU immovable property, you should consider amending your Will now in anticipation of it coming into effect, because if you wait, and become unable to make the amendment later, your existing Will applies.  If that Will has no choice of law provision, then it will be ineffective in disposing of the EU property and forced-heirship of the relevant country will apply.

However, a nomination made now has no effect until next August, so please do obtain advice from a specialist in international succession and probate law, either here in Canada or in the country where you reside and/or own land, about what would happen if you died in the interim.

There are of course many other considerations when owning real property in a foreign jurisdiction, including tax laws and non-succession related estate matters. We can put you in touch with the appropriate advisers if you have any questions about estate planning for foreign assets.

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How does the new Wills Estates and Succession Act affect your estate planning? 

Effective March 31, 2014, British Columbians have a new set of laws that govern both the making of Wills and the management of an estate after a person dies.  The Wills Estates and Succession Act (the “WESA”) and the new rules of court govern estate administration and estate disputes, and contain some fundamental changes that both clarify and complicate these matters.

Most importantly, under the WESA there are some significant changes for the spouses of those who die without a Will (“intestacy”). The impact is greatest on those in second or subsequent marriages, where there are children of prior relationships and the assets of the couple are not jointly owned.  Whereas under the old law, the spouse automatically got a life estate in the family home, that is no longer the case. This is either very good or very negative, depending on whose perspective is being viewed.

The whole question of whether the rules of intestacy work for you is easily remedied, of course. Just ensure there is an up-to-date Will in place.

Why the emphasis on an up-to-date Will?  It has nothing to do with the WESA, because existing Wills remain valid, though they will be probated under the new rules.  The fact is, though, that many people, even if they have a Will, made it so long ago that it no longer really works.  By “works” I mean that a Will is meant to determine who gets the estate, who manages it, and how it is to be managed and distributed. Maybe the Will is so old that key people have died, marriages have broken up or the kids are adults who no longer need guardians.  Maybe those kids have turned out to have significant needs or issues.  Probably tax planning for the current reality was not on the radar.  In any of those cases, it is time to revisit the plan.  Having an inadequate Will may be as bad as having no Will!

I routinely meet with people who have finally decided that their 25 year old Wills no longer “work.” They made them when their kids were young, and haven’t looked at them since.

The problem is often just getting to the planning stage;  it seems like an overwhelming job so people put it off, sometimes until it is too late.  Getting that process started is very important.  The planning that goes into making a Will can lead to decisions about lowering taxes, life insurance (to pay those taxes), the use of joint ownership, creating trusts for family members with special needs or who may not be good with money, and other beneficial strategies. The best plan is to get someone with expertise in these matters to get the ball rolling and help you sort it out.

People who ignore the need to plan for the future lose the opportunity to avoid the problems created by dying without a Will or with an inadequately planned Will.  Why would anyone miss out on that opportunity? If you have the chance to have your say about what happens after your death, and at the same time ensure your family and heirs are properly provided for, shouldn’t you take it?

The bottom line is, the WESA does not change the need for having a well-planned Will, but it does give us a clear view of what happens if you don’t.  And it’s not a pretty sight.

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New Probate and Administration Proceedure in BC

Heads up Executors, there’s a new law in town.

If you are in charge of looking after the estate of someone who has recently died in British Columbia (or even someone who died a while ago, but the estate has not yet been administered) here is what you need to know.

The Wills, Estates and Succession Act of British Columbia (WESA) is coming into effect March 31, 2014.  Along with it, the Rules of Court are changing.  The WESA sets out how to get a Representation Grant (probate, with a Will, administration without a Will), and the Rules of Court provide the forms that must be used.

The WESA also has new provisions for small estates, but those won’t come into effect yet.

The WESA makes significant changes about who gets notice, and when notice must be given.  For example, whereas previously the applicant could mail the notices to the beneficiaries on the same day she filed the application for probate, there is now a requirement that notices be sent 21 days prior to filing.  Other significant changes include the fact that the applicant for administration no longer needs to clear off other potential administrators.  The presumption of the need for a bond is also gone, unless there are beneficiaries who are minor children or mentally incompetent.

Anyone who has recently tried to pry information out of a financial institution in order to be able to apply for a Representation Grant will be pleased to know that financial institutions (eg, banks) now have 30 days to comply.  If they don’t, the applicant can get a court order for the information, and costs of the application.

The dispute process has also changed significantly.  For example, a caveat is now called a Dispute Notice, and any and all actions in connection with the estate will be under the same court file.  Previously if someone wanted to sue in an estate matter, they would have to start a new action, instead of just proceeding under the probate application.  That includes disputes about the validity of the will, applications for Wills Variation, and claims against the estate under Family Law.

If the application is filed by March 31, 2014, then the old forms will apply;  if after March 31, then the new forms must be used.

Most of the forms now have “check boxes”, which is meant to make it easier for non-lawyers to file applications.  Looking at these form, though, they are still not easy to navigate, and we expect that most people without legal training in the area of wills and estates will want the guidance of someone who does have such expertise.

If you need to apply for a Representation Grant (either probate or administration) and have questions or concerns about these coming changes, please don’t hesitate to contact me.

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Does your Living Will actually work?

As the recent BCSC decision in the Margot Bentley case demonstrates (Bentley v. Maplewood Seniors Care Society 2014 BCSC 165 many Living Wills or Representation Agreements currently in place in British Columbia probably do not do everything people expect them to do. In fact, the case casts doubt on whether it is even possible to give specific care directions that will be honoured in every circumstance.

For those unaware of this case, Mrs. Bentley, who during her working life was a nurse, and understood what advanced Alzheimer’s disease looks like, wanted to ensure that if she ever reached that point she would not be kept alive. She wrote a “Statement of Wishes”, which directed that no artificial means be taken to prolong her life. She went so far as to add a wish that she be euthanized.

After she herself was diagnosed with Alzheimer’s, a second “living will” was found. It is not clear whether that second document was actually signed by Mrs. Bentley or if it was a forgery (as was alleged). However, this second document contained a statement that she would accept “basic care” but no “artificial means” or tube feeding. It appears to be the standard boiler-plate “living will” that has been circulating via the internet and elsewhere for a long time, and is often signed without much (if any) discussion between the individual and their legal adviser.

In the meantime, Mrs. Bentley is at stage 7 Alzheimer’s, and is being spoon fed.  She usually, though not always, accepts food when a spoon is placed next to her mouth.  Her family want that stopped, saying it is merely a reflex;  the health care providers refuse to do so.

In court, arguments were made that the Statement of Wishes should qualify as a Representation Agreement, appointing two people as alternate decision makers. The court refused to agree, saying that the Statement of Wishes only mentioned medical care, which the judge distinguished from matters of personal care such as feeding.

To summarize, the judge found:
1. That “Mrs. Bentley is currently capable of making the decision to accept oral nutrition and hydration” and that she “is providing her consent through her behavior when she accepts nourishment and liquids”; this in spite of her very obvious incapacity in all other things.
2. Providing food or water by glass or spoon (as opposed to by tube) is a form of personal care, not health care;
3. The wording of both documents signed by Mrs. Bentley failed to constitute valid representation agreements or advance directives, so there was no validly appointed alternate decision maker for her, or at least not for matters of personal care;
4. Even if Mrs. Bentley was incapable of consenting to oral nutrition and hydration, the legislature did not intend (her Statement of Wishes or her Living Will) to give anyone the right to refuse, on her behalf, basic personal care necessary to preserve life.

The judge also found that anyone who withdraws or withholds food and/or water from an adult who is not capable of making that decision would face potential criminal liability.

At Boughton, we feel the best way to deal with these issues is to ensure that you have a properly appointed alternate decision maker in place. In BC this can be done by a Representation Agreement. We also urge clients to make their health care and personal care wishes known to the representative through clearly worded written statements as well as frank discussions about the issues.

We strongly urge you to review your previous Statements of Wishes, Living Wills, Representation Agreements or Advance Care Directives to determine whether they actually allow your wishes to be carried out in light of the Bentley decision. If you are not sure, please contact us.

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