END OF LIFE CARE: DID YOU KNOW?

Dying with Dignity Canada is a charitable organization that is 100% funded by private donations. The work of their national chapter is probably best known. It engages in advocacy, in particular to expand access to Medical Assistance in Dying (MAID). However, Dying with Dignity’s local chapters are committed to community education on a variety of topics related to end of life, including how to access care, what the available options are, what questions to ask and what information to consider in decision making. This is practical, accessible information that can be of real use to families faced with tough decisions. As a starting place, their website has a variety of information and educational resources.

Local chapters run lunch and learn sessions and other educational seminars, and will respond to enquiries for private sessions geared towards a specific audience. Their sessions can educate attendees on palliative care and practical tips for individuals and their families trying to get the best care that will meet their goals, whatever those may be and in their individual circumstances.

 

Laura Cardiff 

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.

THE FIGHT OF SURVIVORSHIP

Before placing title to your home, bank account or investments into joint ownership with another person, it’s important to understand the financial and legal risks involved. These transactions are regularly the subject matter of costly litigation, particularly when the recipient does not contribute financially in exchange for receiving the interest – a ‘gratuitous transfer’. When these disputes reach court, a key question for the judge is the transferor’s reason for making the gratuitous transfer.

 

Why might you want to gratuitously transfer ownership of an asset into joint tenancy?

1. As a Gift

On your death, ownership can go directly (by right-of-survivorship) to the surviving joint-tenant – for example your spouse or child – without passing through your estate. This means probate fees are avoided, as well as the inconvenience and delay of estate administration.

The gift has two varieties[1]: a “True Joint Tenancy”, where you confer upon the recipient immediate ownership rights that are equal to yours and the “Gift of the Right of Survivorship” where you maintain exclusive control of the asset during your lifetime[2]. In either case, what remains (if anything) of the asset upon your death becomes the sole property of the recipient, by right of survivorship.[3]

2. For Convenience

The gratuitous recipient is placed on title to assist you with managing the asset, but has no true, or beneficial, ownership rights. If you die first, the recipient becomes the sole owner in name (by right-of-survivorship), but he or she is obligated, as a trustee, to return the asset to the beneficial owner – your estate.

 

Somewhat bewilderingly, the legal documents giving effect to these transfers (e.g. real estate conveyancing documents, bank account opening paperwork) usually fail to specify whether beneficial ownership rights are being conferred. In other words, there’s no way of telling from the official documents what the transferor’s reason was for creating the joint tenancy – gift, or convenience[4]. This ambiguity about ownership creates a foothold for future litigation. Often the dispute arises years or decades later, when the transferor dies and his or her heirs proceed to challenge the ownership of the surviving joint tenant (to whom title has passed by right of survivorship), on the basis that the deceased never intended a gift, such that the asset really belongs to the deceased’s estate. I call this scenario the ‘fight of survivorship’.

There is need for reform in both commercial practices and the law, but until then, what can you do to minimize the risk of future problems when making a gift using joint ownership? Simply put, never make such a transfer for the second reason mentioned above (i.e. for convenience), as that is precisely what powers of attorney are for. The attorney for property has an obligation to manage your asset (or finances generally, depending on the scope of the power of attorney) in your best interests, but granting a power of attorney carries no possible suggestion that ownership rights have been affected.

A gift is the only good reason for making a gratuitous transfer into joint tenancy. Your gift intent should be clearly documented at the time you establish the joint tenancy. In your will (or a codicil thereto) you should specifically state that you want your jointly-held interest to pass by right of survivorship, and not to form part of your estate. Or you could instead write a letter expressing your desire to make a gift, and have the letter held in safekeeping by your lawyer, or by the transferee, who could produce the letter should his or her ownership ever be disputed[5]. Whatever method you use to document your intent, always be clear whether you intend a “Gift of the Right of Survivorship” or a “True Joint Tenancy”.

Though a gift is the only good reason for making a gratuitous transfer into joint tenancy, this doesn’t mean that joint tenancy is necessarily the right way to make a gift. On a $1,000,000 asset passing by right-of-survivorship, your estate would save roughly $15,000 in probate fees, compared to the same gift made by will. But a gift in a will can be undone or changed at any time prior to your death (if you still have the necessary mental capacity), whereas a gift made using joint ownership is irrevocable[6]. And with joint ownership, there are financial risks, like your jointly held interest being exposed to the claims of creditors of the recipient joint tenant, or abuse by the recipient who could potentially drain all the funds in a joint bank account or encumber a joint property without your consent[7]. Finally, as explained above, litigation tends to loom over gratuitous transfers into joint tenancy – but with the information and tips contained in this blog post this risk can be greatly reduced.

 

Greg Miller

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.

 

[1] Kennedy v Smith, 2022 BCSC 1622 outlines the types of joint tenancies that can result from a gratuitous transfer.

[2] In Pecore v Pecore 2007 SCC 17, the Supreme Court established that the Gift of the Right of Survivorship, although appearing testamentary in nature, is really an immediate inter-vivos gift to the gratuitous transferee consisting of what remains, if anything, of the subject matter of the gift upon the gratuitous transferor’s death, if the gratuitous transferee survives the transferor (at para 48).

[3] If the recipient should predecease you, his or her ownership interest is extinguished, and you once again become the sole owner.

[4]  However, RBC Dominion Securities offers both a True Joint Tenancy investment account, and a Gift of the Right Survivorship investment account (using their own nomenclature). Providing a choice of joint accounts, with clear descriptions of the rights of the parties during their lives and upon the death of the first joint tenant, makes great sense and reduces the risk of future litigation.

[5] See Feldman J.A.’s helpful description of the options for documenting a gift intention at para 83 of Saylor v Madsen Estate 2005 CarswellOnt 5896

[6] See Pecore, supra note 2 at para 56. Although these gifts are irrevocable, they can be effectively ‘defeated’ if the transferor depletes the asset prior to his or her death (for example by draining a bank account to a $0 balance).

[7] In a True Joint Tenancy there might be nothing improper about this, since both joint-tenants have equal rights to the asset (and each joint-tenant is considered to own 100% of the whole). With a Gift of the Right of Survivorship, though the recipient is not meant to be able to exercise control during the transferor’s lifetime, there is still a risk this could happen since the recipient is on title.

ACTING AS A LOVED ONE’S LITIGATION GUARDIAN: RESPONSIBILITIES AND RISKS

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. 

 

ANGELA CASEY PRESENTS AT “THE ANNOTATED GUARDIANSHIP APPLICATION” PROGRAM

I am grateful to Jan Goddard and Yasmin Vinograd for inviting me to be a panelist at the Annotated Guardianship Application program on March 6, 2024. They obviously put a lot of thought and care into choosing interesting topics and great speakers. Each time I participate in the program, I end up learning new things from the other speakers and panelists:

Meredith MacLennan offered three tips for registering guardianship orders on title. Guardianships sometimes arise in situations where the vulnerable person is already being financially exploited. As a guardianship lawyer, I have seen unfortunate situations where vulnerable adults have signed paperwork that is manifestly against their best interests at someone else’s behest. Even with a guardianship order in place, there is nothing stopping a wrongdoer from manipulating an incapable person into signing documents to take out a mortgage or transfer title. Registering the guardianship order on title gives notice to anyone seeking to lend or purchase the home that the owner has a substitute decision maker. However, I learned yesterday that from a conveyancing perspective, this is not as easy as it sounds. Meredith’s top tip was to ask the court for a stand-alone order to register on title because the standard Judgment appending a management plan will not be accepted for registration.

Arthur Fish and Alexander Procope spoke about how to help litigants find an off-ramp from the destructive road of guardianship litigation through alternative dispute resolution. I especially valued Arthur Fish’s insights about delving into the family history of high-conflict/low resolution families to uncover the trauma that is truly driving the family conflict.

Various speakers answered some tough questions from the audience, like whether “joint and several” guardianship appointments are possible (Lisa Filgiano clarified they are not). Doreen So shared an example from her own practice where she came up with a creative partial guardianship solution when a Florida property could not be transferred utilizing an Ontario power of attorney.

The program was chock full of practical advice on how to do a guardianship application from the first meeting with the client through to closing your file. The annotated precedents have been expanded over the years to include a retainer letter, a Notice of Application, an affidavit, a management plan, a guardianship plan, a closing letter, and a Judgment. The program is still available for viewing through the LSO, and I highly recommend it.

 

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.