Paul Hergott - Feb 9, 2025 / 11:00 am | Story: 532529
Photo: Pixabay
Married with Children television character Peggy Bundy’s invitation to her husband Al: “I’m gonna take a shower. Do you care to join me?”. Al’s response: “Honey, there’s a gun in the footlocker in the garage. If I ever say no to that question, I want you to use it on me.”
Have you considered the criteria you would use for wanting your life to end? I suspect most of us will tolerate life just fine after a loss of libido. I also suspect most of us hope death takes us before we reach a stage of decline with terminal cancer where we’re suffering uncontrollable pain and loss of bodily functions and before the stage of a neurodegenerative disease where we are no longer able to breathe.
Some would accept that suffering believing it to be God’s will, a valid personal choice. My choice will be for medical assistance in dying (MAID) to avoid that suffering.
Until 2016, vulnerable folks facing those horrible realities did not have that choice. The only way they could end their suffering was to do it themselves. Left to a patient’s own devices, suicide can be horrific and inhumane for both the patient and their loved ones. Worse, it might have to be done prematurely, before they are ready to die, because waiting could leave them without the physical ability to follow through.
It took two hard fought legal battles to force the federal government to change the law to allow MAID. February 6 was the 10th anniversary of the unanimous decision of the panel of nine justices of our Supreme Court of Canada in the seminal case of Carter v. Canada (AG), 2015 SCC 5, striking down the Criminal Code provision that got in the way of MAID. Additional legal battles resulted in further improvements in our laws in 2021.
It is now the law in Canada that you can access a merciful and dignified end to your suffering.
There remains a hitch however. You must have the necessary cognitive capacity to access MAID.
Dementia is a feared degenerative condition of aging. I fear losing my cognitive abilities more than I fear physical decline. Dementia gradually erodes memory, personality, decision-making abilities as well as function.
At the time of initial diagnoses, I might be experiencing some frustration with subtle losses of mental capacity, but my quality of life will probably be excellent. I certainly wouldn’t be thinking about ending my life at that early point of my illness. But I emphatically wish to meet my life’s end before my condition advances to the point where I no longer recognize my loved ones and I’m spending my days virtually comatose.
In June, 2023, Quebec law changed allowing Quebecers to make an advance request for medical assistance in dying if they’ve been diagnosed with a serious and incurable illness that will lead to the lack of capacity to request MAID – an illness such as Alzheimer’s disease.
The request must include a list of objective and observable manifestations of the illness that the patient considers intolerable to the point of wanting a merciful death.
If it were me, I would include the following:
• Repeatedly failing to recognize close family members.
• Inability to communicate coherent thoughts or make simple decisions.
• Complete dependence on others for basic activities (eating, dressing, toileting, bathing).
Quebec has protocols in place to ensure a merciful death is provided only if:
• The patient is exhibiting the patient-chosen clinical manifestations of their illness
• They are in a medical state of advanced, irreversible decline in capability.
• The medical assessor believes the person is experiencing enduring and unbearable suffering that cannot be relieved under conditions considered tolerable.
Quebec’s laws are not applicable in British Columbia. Properly, MAID laws are federal because they pertain to the Criminal Code of Canada. The federal government would need to change the law to give these rights to all Canadians.
As a British Columbian, I need to wait until my dementia condition progressed to the point of being in an advanced state of irreversible decline before I qualify for MAID. By then, I may have already lost the required cognitive capacity and be completely deprived of a merciful end to my life.
I’m not alone in wanting those rights. According to a 2024 poll, 83% of Canadians support advance requests for MAID for a person diagnosed with a capacity-eroding grievous and irremediable medical condition who will eventually lose the ability to make decisions for themselves.
Not everyone wants to exercise these rights, so they wouldn’t be forced on anyone. It will always be up to the individual to make the choice.
Health Canada is currently conducting a survey on the subject. I hope the federal government will change the law giving all Canadians the same rights if those surveyed are overwhelmingly in favour of such a change.
The survey started on Dec. 12 and will close on Feb. 14. A link to the survey can be found here.
Please take the survey and spread the link to everyone in your sphere of influence encouraging them to do the same.
This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.
Paul Hergott - Feb 2, 2025 / 11:00 am | Story: 531083
Photo: Pixabay
Estate planning is easy when you’re on death’s doorstep.
Imminent predictability of death eliminates the bottomless pit of contingencies that can be the most difficult part of an estate plan. By contingencies, I mean all the various twists and turns that life might throw at you between the time you make your estate plan and the time you die. It’s an unending list for a young person with a full life ahead of them. Here are a few off the top of my head:
• Stating a spousal relationship (married or common law)
• Having children
• Ending a spousal relationship
• Another spousal relationship
• Stepchildren
• More children
• Acquiring property, with capital gains implications
• Grandchildren
• A child marries someone you detest
• A child spirals into drug addiction
• A child’s financial situation tanks with significant debt
• A child dies
• An executor dies or your preference of executor changes
• Your financial situation significantly changes
This list is far from comprehensive.
Contingencies narrow but do remain as we age. I caution clients in their 70s against avoiding probate by making asset transfers to their children because of what could occur during their last 20 to 30 years of life.
I recently had one client in her 70s laughing when I pointed out she could end up falling for a hot little 60-year-old. It’s not so funny when it happens and you want to access the equity in your home to maximize enjoyment of that new relationship but you’ve transferred title to a disapproving child.
Lawyers do their best to advise about structuring assets and drafting wills to accommodate as many contingencies as is reasonably possible. For example, standard clauses provide for an expanding family, an alternate executor or for a predeceased child’s share to go to their children (your grandchildren). But many contingencies cannot be planned for in advance, which is why it’s important to review your estate plan from time to time. This is a topic I’ve written about before. If you cannot locate that column, please e-mail me and I’ll point you in the right direction.
Future contingencies start melting away as the timing of death becomes more and more predictable.The diagnosis of a serious medical condition, with a prognosis of death within weeks or months, gives you an opportunity to arrange your affairs in a way that will save your loved ones a bunch of hassle and expense.
There is no need to re-write your will. You can give your assets away while you’re alive.
(Though maybe wait out the prognosis a bit while you exhaust care options. Recently I heard a fellow tell the story of a complete recovery from exactly that kind of prognosis.)
A more certain situation is after qualifying for medical assistance in dying (MAID). The timing of your death is no longer based on an uncertain medical prognosis. It’s been planned to alleviate suffering.
It is of key importance to take intended steps with your assets or estate while you continue to have the cognitive capacity to do so. Alternatively, you can appoint someone with power of attorney, giving them both the power, as well as the clear instructions about on what to do on your behalf if you lose that capacity as your medical condition continues to deteriorate. Then it’s up to that person to fulfill your wishes before death occurs because a power of attorney has no authority after you die.
We never know when something might suddenly occur that takes away our cognitive capacity, whether it be a medical or traumatic event. You can choose at any stage of life to appoint a person with power of attorney with a level of authority that would allow them to distribute your assets according to your will in circumstances where your death is imminent and you no longer have the cognitive capacity to do it yourself.
Note, that standard form for power of attorney don’t include those powers.
Next week, I plan to tackle the subject of MAID.
I recently learned that in certain circumstances, MAID can proceed even if you’ve lost the cognitive capacity to give final consent. That gives us the luxury of prolonging our lives without the fear our wish to die when we chose to will not be stolen because our cognitive capacity has slipped away.
This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.
Paul Hergott - Jan 26, 2025 / 11:00 am | Story: 529615
Photo: Pixabay
Shacking up comes with serious consequences.
A clock starts ticking when two people in a relationship move in together. I think that most folks are aware of family law consequences of living together for two or more years in a marriage-like relationship. You become “spouses,” the same as if you walked down the aisle, with the rights and obligations that come with that.
There are also consequences in the estate context. The same definition of spouse is contained within the Wills, Estates and Succession Act.
Paraphrasing section 60 of that act, if you die leaving a will that fails to make adequate provision for the proper maintenance and support of your spouse, the court can redistribute your estate to accomplish what, in the court’s opinion, is adequate, just and equitable.
Do you think you’ve got your ducks in a row because you had a cohabitation or prenuptial agreement put in place? Maybe, but maybe not.
Many couples enter into a written agreement, agreeing that what each brought into the relationship is theirs, and neither will sue the other’s estate. Those agreements are not cheap, unless pulled off the internet, in which case they might not be worth the paper they’re printed on.
However much you invested to ensure you can pass your wealth on to your kids instead of your new partner, those agreements are seldom “one and done.” An agreement that was fair when you first started living together will likely become unfair over time—the unfairness becoming greater and greater the longer you live together.
Provisions agreeing you won’t sue the other’s estate are not enforceable. A court considering whether you have made adequate provision for the proper maintenance and support of your spouse will not uphold an unfair cohabitation or prenuptial agreement.
There’s another, lesser known, piece of legislation that comes into play after the ticking clock reaches two years. It’s called the Land (Spouse Protection) Act.
Let’s say you’re the sole owner of your house. Your romantic partner moves in with you. The partner doesn’t contribute a cent towards repairs, maintenance, property taxes or any other expenses related to the home.
After two years of living in that home, the partner automatically becomes your spouse under that act, entitling them to register a charge against title. They don’t have to tell you about it and you won’t be notified.
If you die before they do, they will be entitled to continue living in your home for the rest of their life, regardless of what your will says.
It’s easy to register a charge against title. There is a simple form of affidavit in the regulations, where they must swear you are spouses and you are the sole registered owner of a property where the two of you live.
In circumstances where a home is the bulk of an estate, your spouse’s right to continue living there for the rest of their life can significantly impact what you’re leaving to your beneficiaries.
Is reading this making you nervous? You can take steps to protect yourself from the ticking of a clock having unintended consequences. Cohabitation and prenuptial agreements can include clauses that prohibit filing a Land (Spouse Protection) Act charge.
To ensure enforceability, those agreements should be reviewed periodically and updated as necessary to ensure ongoing fairness over the passage of time. An agreement with an aligned will that is fair, upon your death will not be varied.
Does the thought of dusting off a cohabitation or prenuptial agreement and reviewing it with your spouse sound uncomfortable? Perhaps it is because maintaining a what’s-mine-is-mine position after you’ve been sharing your life together for a period of time no longer fits.
There are additional legal tools that can be put in place to help protect your interests as well.
Properly wrestling with these issues requires expertise in both family law, as well as estate planning. I don’t have expertise in family law, nor do I have expertise in some more involved estate planning tools but I can refer you to other lawyers who do.
This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.
Paul Hergott - Jan 19, 2025 / 11:00 am | Story: 528293
Photo: Pixabay
Is privacy about what your children will inherit important to you? Maybe it’s important to them?
Last week’s column was about registering your will with the Province of British Columbia’s Will Registry. There is no privacy loss about inheritance there because only the existence and location of your will is registered. Nobody, except you and your lawyer or notary, can access that limited information while you’re alive. You could change your will weekly, registering with the will registry every time and nobody would find out.
Anyone armed with a death certificate can search the will registry after you’ve passed away, but the only information they’ll get is the date and location of the will. The will itself isn’t registered, just a form that refers to the date and location of the will.
The risk of privacy loss comes when your executor goes through the probate process. Any member of the public can do an online search of the Province of British Columbia’s court registries through Court Services Online. The search form specifically allows you to search for probate files by the deceased’s name.
If you have trouble finding the online search tool, let me know and I’ll help you.
You get a list of files that provides the court registry location, file number, date the file was opened and the date the file was last updated. For a $6 fee, you can see the name of the person who applied for probate, as well as a list of documents on file.
Some of the listed documents can be viewed online for another $6 fee and others can be sent to you by request for a $10 fee. Other documents, such as the will, require a request to the court registry where the documents were filed, but can be obtained for a photocopying fee of $1 per page.
The will itself is unlikely to give any information about the size of the estate. But there will be an affidavit sworn by the executor or administrator of the estate that lists the estate assets and their values. Armed with the affidavit that sets out the value of the estate, and the will that sets out how the estate is to be divided, the curtain is lifted on your children’s inheritance.
Is there a way around this? Absolutely.
Your will, and the value of your estate, can be kept confidential if there is no probate. I’ve written in some detail about how you can structure your estate to avoid the expense of probate (legal and probate fees) in previous columns. Let me know if you have trouble finding those columns and I will help you.
The method that works almost exactly like a will, but sidesteps the probate process, is setting up a trust. A trust is more expensive to set up than writing a will and there is ongoing administrative effort and accounting expenses. But that is partly offset by avoiding the legal expense and fees related to probate. Some might say it’s a small price to pay for confidentiality.
Other tools, like joint ownership or transferring your assets to your beneficiaries before you die, are just as effective but have downsides such as loss of control, tax implications and making your assets vulnerable to your beneficiaries’ creditors.
Another tool that I’ve not written about before is something called “dual wills”.
You make two wills. One will is probated. It says what’s to happen with your house, vehicle, bank accounts and any other assets that require an estate grant to be transferred to your beneficiaries.
The other will, which can be kept confidential, is not. It says what’s to happen with your assets that do not require an estate grant.
Dual wills are of value only if there are significant assets that don’t require an estate grant. One such asset is shares in a privately held corporation. It is common for wealthier folks to have a holding company that owns much of their investments. The confidential will says what’s to happen with those shares, as well as anything else not requiring probate (gold bars, art collection, antiques, expensive furniture, etc.).
The approximately 1.4% probate fees are avoided for the assets governed by the confidential will and the existence of those assets is kept confidential because that will is not available to the public.
Please ensure you get legal, as well as tax, advice about your estate plan. Dual wills have complexities and should not be attempted without the assistance of a lawyer.
This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.
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