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").
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 (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.
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.
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.
One of the issues of increasing concern to parents is having that family wealth conversation.
A well drafted will is not worth the (stack of) paper it is written on if it fails to achieve the client's objectives. Those objectives are often defeated where an estate plan is not properly designed, implemented, or maintained.
As we look forward in our crystal ball to looming issues on the horizon for 2017, one that certainly comes to the fore is the regulation of those who provide financial advice and financial planning services, often offered under the nomenclature of "estate planning" or "retirement planning" advice.
It is quite remarkable to think that notwithstanding our increasingly aging demographic,1 the recognition of the rights of older persons as a distinct group has been largely absent in the field of human rights. Only recently the rights of older persons as a distinct group have begun to emerge and slowly become reflected in legal thinking and legislative change. There is increasing movement towards creating a United Nations international declaration or convention on the rights of older persons as older persons' rights have not generally been expressly recognized at the international level. One of the objectives for creating an international convention is to provide a concrete overarching legal framework for use by government around the world, including by guiding policy-making in order to address the distinctive human rights issues faced by older persons.
Sometimes the law leads in pushing societal change forward, but often it lags far behind, particularly in the face of scientific innovation and rapid technological change.