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Canadian lawyer focussing wills and estates, corporate and business law.

Advance Care Planning since the COVID-19 pandemic

The Canadian medical system coped well COVID-19.  The imminent threat of illness and possible death got a lot of people thinking about their wills, and also about powers of attorney.

In Ontario there are two powers of attorney, one for property and one for personal care. The personal care power deals with your person, your health and care.

An Advance Care Directive is not a power of attorney, but related. It is a document that sets out how much or little medical treatment you want to have if you are very seriously ill and close to death.

Everyone should have one of these, especially if you are older or vulnerable health-wise. There’s no better time than the present to “get your paperwork in order“,  i.e. take care of something you want to have taken care of.

First of all, you will need a Power of Attorney for Personal Care, a document that gives someone close to you, a family member or friend, the authority to make decisions for you if you cannot do it yourself. This is an important document if you become unconscious or are too medicated to be able to make good decisions and give instructions to your doctor. Your “attorney”, the person given authority by the document, is empowered to make decisions on your behalf.

But what decisions are they supposed to make? Do they decide on the basis of what they think is best for you? Or do they guess what  you might want for yourself? How are they to know what you would want in the way of treatment?

The Advance Care Directive takes the guess work away; you complete a form that tells your attorney what you would want in the way of medical intervention, for example, if you have untreatable illness that is terminal or causes unbearable pain.

So it is a good idea to have both the Power of Attorney for Personal Care and the Advance Care Directive. They go together. Give copies to your attorney, or better yet, have the conversation with them before hand about your wishes.

No one wants to make a decision to end their life in advance of facing actual life-threatening illness. But should you come to a point where a decision like that is needed, wouldn’t it be better to have given it some thought before hand and to be prepared?

The non-profit organization Dying with Dignity thinks so, and has prepared a very complete kit that explains the decision-making process and includes the needed forms. Get the right kit for your province here.  They want you to know that making decisions about your health is always a matter of right:

Knowledge is Power: Know Your Rights:

The right to be fully informed of all treatment options. This is also known as the right of informed consent. Your healthcare practitioner is required to inform you of the risks and benefits of each treatment option as well as the probabilities of success.

The right to recognition of a substitute decision-maker. You have the right to appoint a substitute decision-maker (SDM), someone who can represent you when you can no longer make your own medical decisions. Your SDM can speak for you with the same authority as if you were speaking for yourself.

The right to recognition of an advance care plan. Regulations vary by province or territory, but in general, healthcare providers are required to follow your wishes for treatment, provided they are appropriate to your medical condition and are clearly outlined in a valid advance care plan. Your substitute decision-maker must make the decisions you would make for yourself if you were able; this usually requires following your advance care plan.

Do Not Resuscitate (DNR) forms are legally binding in provinces or territories that offer them, so long as the documentation is filled out properly and up to date.

image of coronavirusThe last document listed above could be a crucial one in the COVID-19 crisis: the DNRCF (Do Not Resuscitate Confirmation Form) or what is known in popular parlance as a DNR (Do Not Resuscitate). It is where you can officially declare that you want less rather than more treatment. It is a legal form that would, in the context of COVID-19, allow health care professionals to care for others who may have a better chance of recovery. This powerful form can only be obtained from hospitals and must be signed by a doctor. Once signed, paramedics and other health care providers are legally bound to not provide extreme measures such as CPR or intubation to revive someone, but instead must allow natural death to occur.

Through the COVIC crisis, we learned that intubation is often required at the last desperate stages of the disease and few people recover from that stage even if intubated. It is often already too late, yet ethically hospitals and doctors are committed to using all  resources, staff and equipment that they can to keep a patient alive.

P.S. April 16th is National Advance Care Planning Day in Canada

Burial, Cremation or Composting?

Technology being ever evolving, it is now possible to compost human remains. It’s about as natural as can be in theory, because it doesn’t involve sophisticated containers and chemicals like alkaline hydrolisis, which is essentially cremation by the use of chemicals.

forest grave site marked by cross
Simple wooden cross on nature grave in the forest

Katrina SpadeCEO of alternative burial company Recompose explains that composting human remains, a process she called “re-composition,” involves moving the body to a specially designed facility and placing it inside of a vessel filled with wood chips, alfalfa and straw where, after several weeks of microbial activity, the body breaks down into soil that can then be given to family of the deceased or used by conservation groups. The process uses an eighth of the energy required for cremation and saves more than one metric ton of carbon dioxide for every individual who opts to use it.

A even less yucky alternative to chemical embalming and energy intensive cremation is green burial. How would you rather end up, as soil around your sister’s or son’s begonias or nurturing a forest somewhere?

November is Make A Will month

Fall is in the air. The sun is setting earlier, the leaves are changing and it’s cool at night.

Fall is a time for gathering the harvest and anticipation of winter. It’s a time for looking after things, canning, storing, putting things in order for later use.

There is no better time of year than this to do your Will and Powers of Attorney, which are important tools in planning and managing your life and finances.

We are here to explain the process, answer questions, get you started and help you complete the process. These two articles have some useful tips about why Wills are important and how to get started.

The Ontario Bar Association is responsible for the November Wills month program:

The law firm Hull & Hull have posted this useful article about the importance of wills and powers of attorney.

Posting bond: another good reason why you need a Will.

Bond-posting4willsWhether you have a lot of assets or just a little, the people you are leaving behind will most likely have to obtain what used to be called “probate” but is now called an Appointment of an Estate Administrator In order to deal with your stuff. Anything over $10,000 in value will usually require a Court appointment, which authorizes someone (an Administrator) to deal with your assets. Often the court will require that the Administrator post a bond, which is like an insurance policy that ensures that debts of the estate are paid and that the right beneficiaries receive what they are entitled to. This is especially true if there is no will.

Even where there is a Will, a bond may be required if the named executor lives outside of the province of the deceased. (A good reason to choose someone nearby to be your Executo. The bond creates a guarantee that the Executor won’t leave the jurisdiction without paying bills or distributing the estate to the beneficiaries.

The reason the court requires a bond is that where there is no Will, any number of issues may arise as to who the proper beneficiaries may be and what assets or share of the assets they are entitled to. It may be difficult to determine what assets there are, whether in real estate, bank accounts, investments, etc. and whether there are any outstanding debts. So the courts typically require that a bond be obtained before they will grant someone authority as Estate Administrator without a Will.

A bond is a form of insurance policy that an executor buys and getting one a complicated and expensive business: it is hard to find an insurance company that will issue one; the application process is difficult; the premiums are expensive (typically three years of premiums must be paid in advance) and once the estate is settled, it is difficult to remove the bond, the Court must approve.

When applying for appointment as an Estate Administrator, you may request that the bond which would otherwise be needed should be waived. It is wholly up to the judge who looks at the file but your chances of being relieved of the trouble of getting a bond are better if the beneficiaries agree in writing to the bond being waived, and if you can show that the deceased’s debts have been paid in full.

Applying for “probate”, i.e. appointment as an Estate Administrator, is a complicated process generally and it’s a good idea to get professional help. Cost will generally be in the $2000 – $5000 range depending on the size and complexity of the estate and the number of beneficiaries.

Wills for artists and other creators

Creators need to plan just like the rest of us do. More so even. Creative people (not just artists but designers, inventors and company founders) have creative output, whether a drawing, sonata, patent or brand, which are a particular kind of assets. A little more etherial perhaps, by property nonetheless. (Why it is called “intellectual” property, no doubt.) These assets are subject to financial valuation and taxation and estate administration (probate) fees the same way that real property is, and so, should be dealt with in your estate plan.

Not dealing with these assets in a will can give rise to more than the usual confusion and disputes among heirs, who, in the absence of instructions and tools to deal with your work, may be confused about what to with stacks of watercolours or notes for a novel or the drawings of that widget you invented.

A few recommendations for creative people (and the sons and daughters and grandsons and granddaughters of creative people) are:

  1. Make a separate will just for the creative work (or business, or collection). This can avoid the necessity of complicated and expensive evaluations and estate taxes. Same for anyone with a cottages, properties in other jurisdictions or other high value assets;
  2. Appoint an Executor who knows something about the creative work or business. Their knowledge will be put to good use and they are more likely to do a better job because they understand the value of the work in its creative context, including what it is worth and who will be interested in owning, conserving or collecting it;
  3. Give the Executor control over the copyrights as well as the things in themselves; copyright survives you by 50 years in Canada and can be a significant benefit. Even if the dollar value of your work is not that great today, you don’t know about tomorrow or 100 years from now, and in any event controlling how and where the work is reproduced can be very important.
  4. Consider making specific gifts to specific people. Family, friends and colleagues will appreciate being asked if they would like to have special things like art work, just make sure it is optional and provide an equally good alternative if they decline.
  5. Consider gifting creative work, sketches, notes, correspondence or other materials related to the creative practice to a public museum or university. But note: Museums do not accept gifts just because they are given; they will have to be asked and negotiations may ensue, so it is important to have someone who knows the terrain asking them. Universities are similarly discerning but often are just as interested in personal papers as they are in finished works for their archives and collections. (If you have been corresponding with Margaret Atwood, somebody is going to be interested in her letters to you, if not yours to her:)



If you’ve read this far, I have a question for you. Would it interest you to write your own will in calligraphy? stork_calligraphyHow cool would it be to write your own will in a form that actually looks as olde as we think the practice of making wills is arcane? Perhaps a calligraphy class/will-writing workshop could be organized… I’d like to know your thoughts. Please use the comment form below. Thanks!

Another miscellaneous thought:

Artists tend to think they don’t have enough stuff, or enough stuff that is valuable enough, to warrant having a will. But, like for most people, a will isn’t about how valuable your stuff is. It is about who will look after what you have and properly giving them the authority to do that and instructions to help them along.

Artists suffer many clichés, including that they are poor, or poorer than average. Artists get particularly caught up in a general cultural confusion about value and wealth. It is not that wealth is not necessarily material, or that some kinds of wealth are better than others. I don’t personally believe there has to be a trade off between material “real” wealth and immaterial “unreal?” wealth. Artists no more hold a monopoly on fulfilling experiences than they do necessarily suffer materially for their art. We need to get over such mythical misconceptions.

Which is not to say that wealth doesn’t matter. Alan Watts has a pretty enlightened perspective on what constitutes value, “True wealth is the sum of energy, technical intelligence, and raw materials,” which tells us that every sort of creative person produces things of value that should be dealt with respectfully, like through a well-drafted will.



Wills for folks on fixed incomes

Wills aren’t just for people with money. Even if you live on a fixed income and don’t have much in the bank or many possessions, you should have a will.

Here are some good reasons why:

  • a will appoints someone to be in charge of wrapping up your affairs when you’ll not be there any more to do it yourself. This person is called your Executor because they “execute” on your wishes;
  • a will can specify the kind of funeral and burial you would like, which is a nice thing to do, but also can be very important if you want particular things or your religious beliefs require certain things;
  • if you want to be cremated, a crematorium may need to see the will to make sure that is actually your wish;
  • banks, investment companies and even your phone company may need to see a will before they will close your account or release funds to anyone other than you;
  • Everyone comes from somewhere and a will can be a place to list next of kin so someone can contact them when your time has come;
  • even if you don’t have many things, someone needs to look after them and your family and friends may be confused about who should be in charge; your will clearly makes someone responsible.
  • giving a special momento or something of sentimental value to a child or special friend can have great meaning to them;
  • even a small sum of money given to an organization or cause you support can make a real difference, creating a lasting legacy.

elderly-person-holding-pills-in-handBut if you are on a fixed income, we know money is tight. It can be hard to get a will done affordably. We have a special plan for people on fixed incomes. We can’t do it for free but we’ll come as close as we can. Please use our C
Contact form to get in touch.

Green burial – a coming trend

If you want to be environmentally responsible to the very end, “green” burial is gaining in popularity. There’s even an association to promote the practice.

The frightening environmental impacts of cremation are well-described in this article: Should I be buried or cremated?

Green burial eliminates the need for embalming, heavy preservation-oriented sealed caskets and much of the pomp and circumstance around funerals. As importantly, green burial grounds are being used in conjunction with restoration planning and conservation management techniques. According to Joe Sehee, writing for PERC, the Property and Environmental Research Centre in Bozeman, Montana, allocating a forest as a green burial cemetery is “a powerful new tool for protecting endangered habitat at a time when innovative, market-based solutions are sorely needed.”

What your remains are buried in can have environmental consequences too. Consider the dyes and chemicals in many fabrics. You could even consider the impacts of cosmetics, soaps and medications such as antibiotics you may have been using or taking.

Another “last thing” you can do for the environment is to bequeath something to a charity, cause or project you believe in. If you choose to do this in your Will, be sure the party preparing it names of the organization exactly, including in their business number, e.g. The Bruce Trail Conservancy, BN 119217578RR0001.

Green burial grounds use only natural markers that don’t intrude on the landscape. These natural markers can include shrubs and trees, or a flat indigenous stone, which may be engraved. As in all cemeteries, there are careful records kept of every interment, mapped with a GIS (geographic information system).

Geo-caching is a interesting technology that is seeping into the culture. Imagine your ashes being geo-cached somewhere in the Canadian Shield, a small cairn someplace distant but not unreachable, so visiting them would be an adventure for your loved ones.

Even Anglicans are cottoning on to it: “geo-caches may be a good way to encourage visitors into our churchyards.”

Perhaps in our perfectly ecologically-balanced future, we will journey, or our bodies will be delivered, far into the vast Canadian wilderness where our solar powered, 100% decomposable phones will broadcast a final signal: “Lat: 52° 11′ 8.1918″ Long: -86° 50′ 9.3732 – Peace out.”

Geographical coordinates seem to be all we have left of Louis XIV.

In Ontario there are three certified green burial sites: Union Cemetery in Cobourg Ontario, Meadowvale Cemetery in Brampton Ontario, and Duffin Meadows Cemetery in Pickering, Ontario.

IMG_0950.JPGIn 1952, David Brown started building this house on Kootenay Lake in B.C. entirely out of glass embalming fluid bottles, saving 500,000 of them from the landfill.

I’m young, single and don’t have much stuff. Do I really need a will?

Yes, you do. There are many good reasons.

The first reason is because without a will, it can be difficult for anyone to deal with things like closing bank and other types of accounts, e.g. email, websites, phone, Google, Facebook, or to make funeral arrangements or decisions about cremation or burial.

Another good reason is that these days single people can often be closer to non-family than family. You may want your close friends and companions to look after things as well as have some or all of your stuff.

Yet another good reason is that you can leave something to the good causes you believe in. Imagine if everyone did this. Even modest legacy gifts would add up to make a difference.

A will does not have to be complicated but everyone you care about will benefit from the clarity you create by having one.

Below are more particulars about the legal rules of inheritance in Ontario.

In Ontario, if one passes away without a will, the laws of intestacy dictate who inherits that individual’s assets. These rules are governed by Part II of the Succession Law Reform Act. Where a person dies intestate and leaves no spouse or issue, their property is distributed in the following order: parents, brothers and sisters, nephews and nieces, and finally, next of kin. Where a person dies intestate with none of the mentioned relations surviving, their property escheats to (i.e. becomes the property of) the Crown.

“Depending on the person, the rules of intestacy cannot be assumed to adequately reflect an individual’s wishes. Without a spouse or children of their own, the individual likely formed bonds in the community that are not reflected by the rules of intestacy. For example, close friends or the children of close friends may be a more practical choice.

“Single persons may also have preferred charities or other social or community activities they belong to that they wish to benefit that will only benefit under a will.

– above from here.

DIY WIlls: Your handwritten (holographic) will may be valid, but the critical thing is the form.

Lawyers will advise against writing your will yourself. Although a handwritten and signed will can be legally valid, they are not wrong to warn you. Unless you know the formalities of Wills and are careful with the language, there’s real risk your DIY Will won’t do what you want it to, or be legally valid at all.

A happy story of a beautifully hand-crafted Will is that of James Smithson, whose will created the venerable Smithsonian Institute, a treasure forever for the people of the United States:

“James Smithson wrote a draft of his Last Will and Testament in 1826 in London, only three years before he died. He died on June 27, 1829, in Genoa, Italy, where he was buried in a British cemetery. The will left his estate to his nephew, Henry James Hungerford, and stated that if his nephew died without an heir, the money would go ‘to the United States of America, to found at Washington, under the name of the Smithsonian Institution, an establishment for the increase and diffusion of knowledge ….’ After his nephew died without an heir, Smithson’s estate did come to the United States and a debate began about what this new institution would be.”