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.
You've heard it before: there's a lot of information out there these days. Thousands of hours of Youtube content are uploaded every day. Wikipedia entries are updated every minute. Blogs are written, websites created and refreshed. You can find information, accurate or not, on just about any subject, no matter how obscure, and instructions on how to do just about anything, from baking cookies to building a bomb. This overload of information extends to many important aspects of your life, and estate planning is not excluded. Google the words "estate planning Ontario" and you'll get thousands of results. Everyone has advice to give if you ask (or even if you don't). So how do you decide what to follow and what to ignore?
You may remember the bestseller Zen and the Art of Motorcycle Maintenance which explores many themes, including the dichotomy between the "romantic" approach to life versus the "classical" approach--in the moment versus rational analysis--and the common ground linking them. The sense of mastery and peace of mind that comes with the author's ability to maintain his older, classic motorcycle versus his friend's lack of interest in understanding how to maintain his expensive new one and his resulting frustration when it breaks down, forcing him to rely on professionals to repair it, are key themes.
Perspective is important and illuminating--only about fifteen years ago, or perhaps even less, it was not common to have to consider the impact our Canadian and U.S. tax and legal regimes have on estate planning and our affairs in general. The 49th parallel and the world's longest undefended border symbolized separate tax and legal regimes, and there was little recognition of the need to consider the impact of the laws on either side of it, notwithstanding many Canadians living south of it and many U.S. citizens living north of it.
High net worth individuals have been criticized (especially during election years) for not paying their fair share of taxes. These individuals often take advantage of legitimate tax planning strategies to lower their taxes. A portion, though, utilize evasive strategies that rely on a general lack of tax transparency between countries and laws that promote secrecy.
In my first year of law school--1978--Ontario introduced new legislation to allow a power of attorney to survive incapacity. It's amazing to think that prior to 1978 only legal guardianships through the court process (then called "committeeships") were available to allow a decision-maker to act on behalf of an incapable person.
In our August 18, 2015 post we raised the idea of regular check-ups for your estate plan in order to keep it current. Periodic reviews help to keep you refreshed about the details of your estate plan so that it can be maintained and changed when necessary--ensuring it will carry out your objectives when it comes into effect.
Charity begins at home, so they say. This may be where it starts, but your estate plan is where your charity may end. Most of us will donate time or money to one cause or another during our lifetimes (who doesn't love Girl Guide cookies?). When we die, however, our charity will die with us unless we proactively make plans to carry it forward. Failing to plan means by default choosing not to make charity a part of your estate plan. This may be what you intend, but as with all aspects of your estate plan, a careful consideration of available options and making a conscious decision is usually preferable to letting the decision be made for you.