Oct 31, 2024
I begin with a rant. Power of attorney litigation is the worst. I am not talking here about the kind of litigation where there is an actual financial predator who has obtained a power of attorney through fraud and stolen money from a vulnerable person. That is properly a matter for the courts and the kind of case I derive great satisfaction in pursuing.
I am talking about the kind of power of attorney dispute where the sole issue is whether Johnny or Jane should act as attorney for property and personal care for their parent.
The usual fact pattern begins after the first parent dies. In the aftermath of Dad’s death, the entire family realizes how much Dad’s involvement had been masking Mom’s dementia symptoms. It becomes immediately apparent that Mom is struggling on her own – burning things on the stove, losing her license after a minor car accident, missing appointments, and having trouble with word finding.
Jane is the Responsible One. Jane was always the straight-A student, the rule follower, and the one her parents leaned on most in their senior years. Jane has a Big Job and a busy life with all the typical Type A supermom activities. Naturally, when her parents did their estate and capacity planning 20 years ago while both were well, Jane was selected as the attorney for personal care and finances.
Johnny, by contrast, was not successful in any traditional sense. He doesn’t have regular work, went through an ugly divorce such that he has no full-time parenting responsibilities, and suffered from a substance use disorder from which he has recovered. He has no financial security and does not own a home. As mothers do, Mom adores Johnny. Jane and Johnny do not get along.
Johnny moves in with Mom, which works for both of them. Mom spent the last 40 years of her life making this house exactly the home she wanted. Each knick knack is precious to her. She loves having Johnny around. Jane, however, sees Johnny’s care as substandard. In her view, Mom is not getting bathed or showered enough, Mom is spending too much time watching TV and not enough time doing enriching word puzzles. Jane read about the optimal Alzheimer’s diet and laments the processed food Mom and Johnny seem to be relying on. Mom’s nails and hair, which had always been immaculate, are dirty and unkempt.
As the attorney for personal care and property, Jane decides it would be best for Mom to move to a state-of-the-art memory care facility. Mom is happy living in her home with Johnny and doesn’t want to go. Jane believes that Mom is just not capable of making that decision anymore and ignores Mom’s pleas. Desperate, Mom sees a lawyer (she has no license, so Johnny takes her there) and signs new powers of attorney naming Johnny as her new attorney for personal care and property.
Jane lawyers up. Her lawyer tells her that because the new power of attorney documents were prepared when mom had dementia, a Court could find them invalid and then she would go back to being in charge. Johnny also gets a lawyer. Eventually, a judge also appoints a section 3 lawyer for Mom.
From Mom’s perspective, things become a nightmare. She reads pages of deeply embarrassing affidavit content drafted by Jane’s lawyer, including anecdotal evidence about the time that she couldn’t make it to the bathroom on time and had an accident at church, another about the traumatizing time she got lost. The affidavit evidence contains photos to show how dirty her hair is, how long her toenails are, and the spoiled food in her fridge. She feels an overwhelming sense of shame and embarrassment. She feels like every visit from Jane over the last few months was a trick designed to capture embarrassing video and photo evidence for Jane’s court case against her. The next time Jane comes to visit, Mom tells Johnny not to let Jane in.
The legal fees in these types of cases are breathtaking because lawyers take over all communications between Johnny and Jane, who no longer speak. Every petty grievance or detail of Mom’s life is aired out through letter exchanges between lawyers charging hundreds of dollars per hour.
For the price Jane is paying her lawyers, she could have paid for Mom to have weekly manicures and pedicures, twice-weekly blow-outs, a meal delivery service, weekly visits to the spa, and an Alzheimer’s day program a couple of times a week. But instead, Jane is obsessed with proving that her brother is a deadbeat getting “free rent” by staying in Mom’s house with her. Jane wants to be back in charge, and she wants a judge to confirm that she is the Good Daughter and Johnny is a Very Bad Son. By the point that they get to mediation, both sides have incurred tens of thousands of dollars in legal fees.
The legal fees then become the impediment to resolving the legal dispute. I have mediated many of these cases where the parties are able to resolve all the important issues – where Mom will live, what type of caregiving supports she will have – but the sole remaining issue is each side’s belief that the other side should pay legal costs. Having settled, it would be difficult to get a judge to decide the costs issue independently because the judge doesn’t have context to award costs to one side or the other without delving into all the issues that are now settled. In many cases, the fight continues and more costs are incurred just because neither side will cave or compromise on costs. And in a sad number of cases, the parent dies while the litigation is still unresolved.
Estate and capacity litigators, we need to find better ways of dealing with these issues. In my experience as section 3 counsel for many “Moms” in these cases, not once has the parent said to me, “I am so glad Jane brought this court case to get me the care I need.” Universally, the parent caught in the middle of the dispute says, “I love both my children equally. I want them to get along and I want this litigation to end.” To them, the litigation feels “stupid” (a direct quote from a section 3 client), embarrassing, damaging and incredibly stressful. In my next series of blogs, I am going to share some ideas about how we might change our approach to these kinds of disputes.
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Oct 2, 2024
I was fortunate to participate in my first trial at the Superior Court of Justice just a couple of weeks ago. It was an eye-opening experience that challenged me and taught me many invaluable lessons. Here are four key takeaways and observations from those two weeks:
You Can Never Be Over-Prepared
It goes without saying that the cornerstone of success in any trial is preparation, preparation, and more preparation. There is a ton of work in the lead-up to a trial, and not enough hours in the day to juggle trial prep and your other files. It is essential to plan out your trial prep weeks in advance, ensuring that you can meet both your other professional and personal obligations. Start as early as possible.
Do you have expert witnesses? Schedule several preparation sessions with them as soon as you can. Remember that your expert witnesses have other professional commitments so it is crucial to allocate ample time with them to discuss their expert report, practice your examination questions, and refine those questions with their input.
Your client, if testifying, will need thorough preparation as well. Conduct practice cross-examination sessions with them to anticipate challenging questions that they may be asked by opposing counsel. It’s not uncommon for clients to be caught off-guard by how easily gaps are identified in their testimony. A key aspect of preparing your client is foreseeing the weaknesses in your case and considering what opposing counsel may target during cross-examination.
Lastly, read and re-read all pleadings, documents, reports, and transcripts. You never know what details you might catch on subsequent review that will be helpful, even incrementally, to your case.
Learn by Observing and Collaborating
I was lucky to work with counsel whose clients’ interests were aligned with my client’s in this trial. Working as a team allowed us to divide up tasks and responsibilities, which made trial preparation not only more manageable but also more insightful and effective. We brainstormed and ran ideas by each other, had multiple perspectives and fresh sets of eyes in drafting pleadings and other written material, and leveraged each other’s strengths.
As this was my first trial, collaborating with experienced trial lawyers was invaluable. I was not shy about calling or emailing them when I had questions, and they were gracious about sharing their knowledge and tips with me. Their guidance taught me a lot about the nuances of trial and courtroom procedure.
Additionally, I gained a wealth of knowledge by observing both aligned and opposing counsel during chief and cross-examinations and when addressing the court. Watching their oral advocacy techniques, strategic approaches, and courtroom demeanour taught me a lot about effective advocacy and legal practice.
Go With the Flow
No matter how much you prepare, prepare, and prepare in advance of trial, surprises are an inherent part of trials, and maintaining flexibility is important. Whether it is a last minute witness schedule change, technology issues, or an unexpected objection from opposing counsel, you need to be prepared to adapt and adjust.
If a line of questioning isn’t eliciting the responses you expected, be prepared to adjust your strategy, rephrase your questions, or move on revisit that question again later. It’s normal to feel frazzled when things don’t go as planned, but stay calm as best as you can. Maintaining your composure will help you think clearly and respond effectively.
While thorough preparation lays the foundation for a smooth trial, your ability to adapt in the courtroom is equally important in being an effective advocate. Embrace the unexpected, and turn challenges into learning opportunities.
There is Always Room for Improvement
As lawyers, we should strive for excellence, but it’s important to acknowledge that perfection is unattainable, no matter how many years of experience or trials you have under your belt. At the conclusion of every case, it’s natural to look back and think about that one additional question you wish you asked, how you might have rephrased a key point in your closing arguments, or the objection you wish you had raised.
Instead of dwelling on what you perceive to be mistakes, view them as valuable opportunities for reflection and growth. Each case and trial is a chance to learn, refine your legal knowledge and advocacy skills, and set the stage for future success. Adopting this mindset allows for continual improvement and ultimately makes you a better lawyer and more effective advocate for your clients.
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Sep 12, 2024
Typically, the expectation when someone dies with a Will is that the beneficiaries named in the Will inherit the estate. Similarly, if someone dies without a Will, it seems reasonable to assume that the estate will be distributed to the beneficiaries established under the rules of intestacy in the Succession Law Reform Act.
While this is all true, there may be a person (or even more than one person) not named in the Will, or who isn’t a beneficiary according to the rules of intestacy, but who is still entitled to funds from the estate, if that person is considered a dependant of the deceased. These dependants may make a claim against the estate for funds, even if they aren’t estate beneficiaries.
When a dependant claims support from an estate, this may mean that beneficiaries end up inheriting a smaller portion of the estate than they otherwise would. It also means that assets that typically pass outside the estate, like an insurance policy, a registered account like an RRSP, or even a jointly owned property, may be considered part of the estate for the purpose of the dependant support claim. This is the case even if these assets have already been distributed to the beneficiaries.
But who qualifies for dependant support from the estate? There is a two-part test set out in the Succession Law Reform Act that helps answer this question. First, the person claiming support must be a dependant of the deceased, meaning they were either a spouse, parent, child, or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide, support. Note that “spouse” includes a common-law spouse who was never married to the deceased.
If the person fits within the definition of “dependant”, the next part of the test is to determine whether the deceased made adequate provisions for proper support of that dependant. For example, is that dependant already a beneficiary of the estate receiving proper support? Or is that dependant a beneficiary of the deceased’s life insurance policy and already receiving proper support that way? If not, the dependant may be able to bring a court application for support from the estate.
Lawyers can advise potential dependants, as well as estate trustees, on whether there is a potential dependant support claim, when that claim must be brought, and how it may impact the distribution of the estate.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Apr 26, 2024
In my previous blog about probate, we discussed what “probate” or a “Certificate of Appointment of Estate Trustee” is, and the different residency and security requirements for probate in Ontario, depending on whether the deceased person had a Will. Sometimes, clients will come to us having already obtained probate or been appointed as estate trustee in a jurisdiction outside of Ontario, then discovering that the deceased owned a bank or investment account in Ontario and needing Ontario probate to get that asset liquidated. In today’s global landscape, we are encountering these situations with increasing frequency.
Where the deceased did not have an Ontario Will, the Estates Act provides that estate trustees can apply for a “Resealing of Appointment of Estate Trustee” or an “Ancillary Appointment of Estate Trustee” in Ontario. Resealings and ancillary appointments have the same effect of recognizing the foreign grant of probate in Ontario as if it were originally granted by the Ontario Superior Court of Justice. In other words, a resealing or ancillary appointment will provide the estate trustee with authority to act on behalf of the estate in Ontario and administer the Ontario assets. The difference between the two is where the original grant of probate was obtained.
Where the applicant was appointed as estate trustee by a court (a) outside of Ontario but within Canada, or (b) outside of Canada but in a Commonwealth country, they should seek a Resealing of Appointment of Estate Trustee. The applicant does not have to be an Ontario resident, and their foreign estate trustee appointment could have been made with or without a Will. A bond is required unless the original grant of probate was made with a Will and the applicant is a resident of Canada or elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.
If the applicant was appointed as estate trustee by a court that is not part of the Commonwealth, they should seek an Ancillary Appointment of Estate Trustee. The applicant does not have to be a resident of Ontario. A bond is required unless the applicant is a resident of Canada or the elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.
If you find yourself unsure about what kind of probate to apply for or which forms to submit, feel free to reach out to our team and schedule a consultation with us.
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Mar 7, 2024
This blog post expands on Adam Giancola’s blog series about the role of litigation guardian at common law.
If your loved one is involved in litigation but lacks the capacity to understand and make sound decisions related to their court proceeding, or is a child under the age of eighteen, they will require a litigation guardian to participate in litigation. All litigation guardians must be over the age of eighteen.
A litigation guardian steps into the shoes of the party under disability and makes decisions arising from the litigation on that person’s behalf. It is a considerable and often demanding role, but one that is critically important to safeguarding the interests of parties under disability in Ontario.
Getting Started
Under Rule 7.02(2) of the Rules of Civil Procedure, any person who wishes to act as a litigation guardian, except the Children’s Lawyer and Public Guardian and Trustee, must file an affidavit with the court with the following information:
- the proposed litigation guardian’s consent to act as litigation guardian;
- confirmation that a named lawyer has been given written authority to act in the proceeding;
- evidence regarding the nature and extent of the disability;
- where acting for a minor, the minor’s birthday;
- whether themselves and the person under disability are Ontario residents (the proposed litigation guardian is not strictly required to live in Ontario, but this is a factor for the court to consider);
- their relationship to the person under disability (you do not have to be a family member);
- whether the proposed litigation guardian has an interest in the proceeding adverse to the person under disability; and
- acknowledges that they have been advised they may be liable to personally pay a costs award against the person under disability.
Responsibilities
The Rules of Civil Procedure sets out various requirements for litigation guardians:
- Litigation guardians, other than the Children’s Lawyer and Public Guardian and Trustee, must be represented by a lawyer. These fees are to be paid from the party under disability’s assets.
- All litigation guardians “must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”. Procedurally, this means ensuring that the correct procedures are followed. Substantively, this means acting reasonably and properly for the benefit of the person under disability.
- The litigation guardian, on behalf of the party under disability, may only enter settlements that are in the best interests of the person under disability. Where there is a party under disability, judicial approval of the settlement is required and courts will only approve settlements that are in the best interest of that person. A lawyer will provide the litigation guardian with advice on what settlements may or may not be in the party under disability’s best interest.
It is also important to understand where the role of a litigation guardian starts and ends. A litigation guardian is not the same as a guardian or attorney for property or personal care. A litigation guardian’s role does not extend beyond issues within the litigation. Unless they are also an attorney or guardian of property, a litigation guardian cannot manage or hold the property of the person under disability, which includes settlement funds.
Risk
In litigation generally, the losing party is responsible for paying a reasonable share of the winning party’s legal fees; this is called a “costs” award.
As discussed above, there is a risk that a litigation guardian could be personally liable for costs awards against the person under disability. The reason for this is to prevent litigation guardians from acting frivolously or improperly at the expense of the party under disability.
This risk is why it is especially important for litigation guardians to hire competent, trusted counsel to provide advice on how to act reasonably and appropriately during litigation.
Rebecca Suggitt
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
