August 2017 - Garton & Harris

Estate administration brings raw emotions to the surface

August 28, 2017/in Estate Administration & Probate /by gartonandharris

No one relishes administering the assets of an estate. For one thing it means a loved one has died and for another, it may mean that volatile emotions are making the process even more stressful. Estate administration in Canada can be smooth sailing or it could get caught up on some rocks, depending upon how unified family members are.

Who is going to get grandma’s blanket box? Who will be fishing with grandpa’s fishing pole? Estate administration might bring out the worst in people’s sensibilities, and it seems the higher value something has, the more people are likely to question who it should go to. Jewellery among women seems to be a sore spot, while other things could include a family cottage or a vacation home. Not only are they expensive things, but can also be priceless in terms of memories.

Lawyers involved in the estate administration process usually give those thinking about fashioning their wills the advice to choose an executor, a power of attorney — and anyone who will be making decisions for them when they are not able — with a clear head. And it may be that more than one person should oversee the administration of the estate. Talking to children even before a decision is made on any particulars may be a prudent idea.

For instance, by talking to children, the testator will be able to learn who may want the cottage or the family home. If there are any contentious issues, they can be discussed between all family members before anyone dies. Hurtful feelings could be sidestepped this way and no one will feel slighted.

Any estate administration issues in Canada should be discussed with a lawyer experienced in wills and estates law. He or she will be able to help facilitate the process and arrange for any pertinent documents to be drawn up like wills. A lawyer’s advice could work to curtail those volatile emotions involved with the estate planning.

Source: thechronicleherald.ca, “Talk to your grown children about estate plans”, Catharine Metzger-Silver, Accessed on Aug. 26, 2017

British Columbia physicians and their patients’ wills

August 23, 2017/in Wills /by gartonandharris

Doctors may have more of a say in what happens to their patients’ estates than most people thought. British Columbia doctors may be called upon to testify in court as to the mental capacity of patients during the time wills were made. This usually happens after a patient has died, but in some instances, a physician’s advice is called upon when the patient is living and the lawyer working on a will sends his client for a mental assessment if the lawyer has some concerns.

When a will is being contested on the grounds of mental incapacity, it is incumbent upon the executor(s) of the will to prove that the deceased (or testator) was of sound mind when the will was made. In other words, the one having the will made must have understood what was happening and had a memory of what and who were mentioned in the will and who might have been excluded.. For the most part, a patient-physician relationship is confidential, but it can disclose information with proper authorization or when required by law.

Because of the delicate nature of the patient-doctor relationship, a doctor should always make sure to verify that whomever he or she is releasing medical records to is the patient’s authorized representative or someone acting on the patient’s behalf, like a lawyer. The person could also be an executor or an estate trustee. If a physician is unsure of who authorized persons are, asking a lawyer for advice would be the best idea.

The issues surrounding estate planning and wills can be complex. An experienced lawyer’s advice is well worth having in order to be aware of the legalities involved in British Columbia. A lawyer will safeguard the interests of his clients when it comes to preparing wills and estate planning.

Source: Physicians and their patients’ wills: issues to consider, “cmpa-acpm.ca“, Accessed on Aug. 18, 2017

Advance care planning vs. living wills: What is the difference?

August 12, 2017/in Wills /by gartonandharris

The terms advanced care planning and living wills are used interchangeably. But in British Columbia, and indeed in all of Canada, living wills is an American-coined term and has no legal status in Canada. That doesn’t mean to say Canadians cannot make plans in the event they are not able to communicate their wishes regarding end-of-life care.

Such a document in Canada is often referred to as an advance care directive, which can be a wish or wishes listed in a Power of Attorney for Personal Care. An advance care planning directive is much more involved than a living will. Life happens and unlike living wills, which reflect an individual’s desires at the time they’re signed, an advanced care planning directive is more than a single document and can be modified if a person’s wishes change over time.

An advance care document opens the lines of communication between family members. The document can come alive with very detailed instructions on how individuals would like to be cared for at the end of their lives, giving their loved ones the confidence they are acting on behalf of them according to their wishes — and acting without guilt. It is not only prudent for British Columbia residents to have their wishes written down, but also important to talk about them.

It’s also a good idea for people to talk to their lawyers about advance care planning and how it differs from living wills. A British Columbia lawyer experienced in wills and estate law can guide residents when it comes to their wishes for their care in case they become unable to personally communicate them. He or she can also explain the legalities in British Columbia of the Power of Attorney for Personal Care appointed to make decisions when an individual can’t do so.

Source: advancecareplanning.ca, “Advance care planning and living wills: what’s the difference“, Accessed on Aug. 11, 2017

Wills important for B.C. business owners

August 7, 2017/in Wills /by gartonandharris

When business owners are no longer of this mortal coil, it’s extremely important that they have left behind a will. Wills are important for every adult in British Columbia, but when someone owns a business, it’s crucial to everyone associated with it — family members, employees, managers and co-owners — that the business can survive without the deceased owner. And if there is a stakeholders’ agreement in existence, it should spell out how to approach issues like death.

The basic step many British Columbia business owners fail to have done is to have a will drafted by a wills and estates lawyer. The law regarding wills and estates changed in British Columbia in 2014. The Wills, Estates and Succession Act (WESA) modernized the laws pertaining to wills and estate planning and business owners definitely should have their wills updated to make sure their wishes regarding their businesses are followed in the event of death, including how they would like their businesses to continue without them.

Distinction has to be drawn between the assets owned by the deceased in a personal capacity and assets owned by the business. Doing this will determine the value of the deceased business owner’s estate and figuring out which assets the will disposed of. An executor doesn’t necessarily have the right to distribute corporate assets to the estate’s beneficiaries. A will of a business owner fashioned by an experienced lawyer will address these complexities.

The legalities of wills can be complex, especially for those who own businesses in British Columbia. Entrepreneurs would be wise to sit down with a seasoned British Columbia wills and estates lawyer to discuss what should be included in a will. Only such a lawyer can give estate planning advice.

Source: devrieslitigation.com, “Death of a business owner“, Justin de Vries and Gillian Fournie, Accessed on Aug. 7, 2017

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