O'Sullivan Estate Lawyers LLP
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Thought Leadership Archives

Embracing Change - A Postscript

The STEP (Society of Trust and Estate Practitioners) Global Congress held in Vancouver in September, 2018, attracted delegates from over 37 countries and six continents. It was a truly global think tank in which we explored, probed, deconstructed and debated some of the most important changes that are, or will in future, shape and impact the world of family inheritance and succession planning.As Chair of the Program Panel Committee, it was particularly exciting for me to see how the two-dimensional communication of countless emails and international conference calls to develop the Congress became a three-dimensional reality of speakers and delegates from around the world who convened for this biennial event to learn about strategies, new developments, ways of thinking and approaches in family succession.

Powers of Attorney: Jurisdictional Challenges

A power of attorney ("POA") is a legal document in which one person, sometimes termed the "grantor", appoints another person - the attorney - to make decisions and act on the grantor's behalf. In Canada, POAs are governed by provincial and territorial laws. Two types of POAs are used in Ontario for estate planning: Continuing Power of Attorney for Property and Power of Attorney for Personal Care.In order for a POA to be valid, it must comply with the formal POA requirements of the applicable jurisdiction. These requirements are generally concerned with who may make a POA, who may be appointed as an attorney, who may or must witness the execution of the POA and when the POA will be in force. Although the formalities may appear similar across jurisdictions, each jurisdiction generally has its own unique requirements, with the result that extra-provincial/extra-territorial or foreign country POAs may not be recognized locally.

The Cautionary Tale of Mutual Wills

Estate planning deals with often complex family situations, including the needs of blended families with complicated personal relationships. The goal of estate planning is to ensure your intentions for your loved ones are carried out.There are several ways to address blended family and second marriage situations so that the children of a prior marriage are provided for. Most common is the use of a trust. Many practitioners have reservations about the use of another technique, "mutual wills", which are further explained below, given their questionable legal basis.

Embracing Change

We all sense the increasing speed of change that permeates all aspects of our everyday lives. Whether it's technology, political or economic events, or even the weather with climate change, the constant is change itself. And with constant change comes the need to adapt to it, or even better - embrace it. In observing the laws of natural selection, Charles Darwin observed that "it is not the strongest or the most intelligent who will survive but those who can best manage change". Resilience and adaptability have become the buzz words of our age. A more positive approach to change is not only accepting it, but embracing it and enjoying the challenges of change as a philosophy of life. As the Japanese intellectual Kakuzo Okakura stated, "The art of life is a constant readjustment to our surroundings". 

2018 Update on the UN Convention on the Rights of Older Persons

December 10, 2018 marks the 70th anniversary of the Universal Declaration of Human Rights which was a milestone in 1948 for protecting human rights. Surprisingly, older persons are not yet expressly identified as a protected group under international human rights laws. In acknowledgment of the Declaration, the UN International Day for Older Persons has coined the theme for 2018 to be "Celebrating Older Human Rights Champions". With the 70th anniversary on the horizon for the Declaration, it feels important to reflect on older person's rights and the long standing discussion around the proposed United Nations Convention on the Rights of Older Persons (the "Convention"). 

Children, Equality and Inheritance: Your Final Legacy

On May 4, 2018, we celebrate our firm's 20th anniversary. I thought it would be fitting as well as helpful to reflect on one of the most challenging questions in family succession: whether children should be treated equally. Being a trust and estate lawyer now for over thirty-five years has given me perspective, as well as some practical insight into this issue.

The Rule Against Perpetuities: A Dying Relic 

The Rule Against Perpetuities (the "Rule") is an old and complex legal rule that aims to prevent the delay of vesting of many types of transferred property interests beyond the "Perpetuities Period" and is the bane of many lawyers who draft wills and trusts. A property interest vests when it is absolute and cannot be defeated. There are many ways to transfer property interests, including under a will or through a trust.

Misuse and Abuse of Powers of Attorney - Why Law Reform is Necessary

Having a power of attorney for property is a document we continually recommend to clients who are in the process of updating their estate plans. The purpose of a power of attorney for property is to give a named individual (the "attorney") the authority to act on behalf of the person executing the document (the "grantor") and make decisions with respect to their financial affairs. Under Ontario law, a continuing power of attorney can be used after the donor is incapable of managing their financial affairs and can be revoked at any time as long as the grantor is mentally capable.

Going Paperless: Electronic Wills

The increasing pace of technological change is our reality, and when it comes to estate planning, there is no exception.The traditional formalities for wills and powers of attorney are stricter than for most legal documents: for example in Ontario a will has to be in writing and signed at the end by the will maker in the presence of two witnesses, who each in turn sign the will in the presence of the will maker and each other. The same process must be followed for an Ontario power of attorney for property and for personal care. The objective is to prevent fraud and help ensure the document reflects the testator's free will - after all he or she will not be around if an issue later arises with regard to the validity of the document. Holograph wills - those which are all in the will maker's handwriting and signed by the will maker at the end are also permitted in Ontario, as well as in many other jurisdictions.

Medically Assisted Dying in Canada - An Update

In April 2017, the CBC reported that over 1,300 people in Canada have died with medical assistance since the Criminal Code was amended in 2016 to legalize medical assistance in dying ("MAID"). While this statistic points to the importance of MAID for many Canadians, the new legislation has not settled the ongoing debate concerning the right to die. Recent litigation on various fronts has highlighted continuing controversies, including questions about the role of medical professionals in MAID, limitations on who will have access to medically assisted dying, and ambiguity in the criteria for access.

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