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.
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.
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".
Our digital asset inventories - electronic tools, digital currencies, files, and various online accounts - continue to grow. Five years ago, the McAfee Digital Assets Survey estimated that Canadian consumers valued their digital assets at over $32,000 per person, which is not an insignificant matter from an estate administration perspective, and one which, as this post explains, requires urgent attention from Canadian lawmakers. Digital assets are different from tangible property that traditionally comprises an estate. Aside from the practical hurdles of transferring digital assets, such as the ability to locate and access them, some digital assets, especially those stored on or associated with online accounts, can also be subject to legal hurdles.
"When people are divided, the only solution is agreement." John Hume
It's been almost three years since our last blog on the European Succession Regulation. It seems timely to check the pulse and see what impact it is having on estate planning and administration.As a refresher, the Regulation came into effect on August 17, 2015 and applies to all European Union member states with the exception of the U.K., Ireland, and Denmark, each of which decided to opt out.
Earlier this week, O'Sullivan Estate Lawyers participated as one of the gold sponsors of the STEP Canada (the Canadian branch of the Society of Trust and Estate Practitioners) 20th National Conference in Toronto, which annually brings together trust and estate specialists from across Canada and other countries to share knowledge and discuss developments. Among the attendees this year were representatives of law and accounting firms, professional trustees, insurance and investment companies, and even experts for finding missing heirs.
Millennials are a loosely defined group of people (those born approximately between 1981 to 2001) who are now beginning to enter the workforce and acquire their own assets. With an aging population it is inevitable that there will be a significant wealth transfer between baby boomers and millennials over the next several decades. In order to plan for this, the younger generation should turn their mind to drawing up a Will, giving careful consideration to who they wish to benefit and take steps to protect family wealth and/or an inheritance. Not only is succession planning important, a Will clearly outlines their intentions and alleviates stress for families if an unexpected death occurs.
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.
Not to beat a dead horse, but it bears repeating: our population is aging. With an increase in the number of people in our society over 65 comes a variety of social and economic challenges, some of which you are no doubt already familiar with. One issue which many people may not have considered, but which is almost certain to affect them sooner or later, is the question of who will make their medical and other personal care decisions when they are not able to do so.