WEL NEWSLETTER December 2020, Vol. 10, No. 9
Hello,

Celebrate all that you are thankful and grateful for this month.

2020 is almost at a close, but we still have a journey to travel before we can resume all of our usual routines and festivities. Vaccines continue to look promising and that provides us some much-needed optimism yet, we must still be measured and patient. On reflection, we had only just started 2020 when the pandemic was soon upon us, hopefully, we will start 2021 and the vaccine will soon be upon all of us! 

Happy Christmas, Hanukkah, Kwanzaa, Omisoka and any and all other cultural, religious and family celebrations you may enjoy in the month of December.

Take time to enjoy, mark the time with a special, notable and positive event. In a year of abundant challenge, it is easy to feel tired, down, despondent, stressed and overcome by negativity. Take the time to appreciate the positive in your life, to think positively about some aspect of now, do something positive, be in the company of someone who you can have a positive experience with, whether virtually, or otherwise. Take a picture, mark the moment, and you will have created something in 2020 that you can look back on with a smile on your face-and remember this too will pass!

I am striving to have no in-person meetings for the required time so that I can celebrate Christmas with my parents this year. That in itself is the best gift. Our older adult community are so isolated at present. My parents and I did not see each other at Thanksgiving since I had in-person mediations. My gift will be self-isolation so that on the 24th we can have a meal, and a hug. I won’t be able to see all of my family because of the pandemic and their own commitments, but as soon as I can in 2021 we will celebrate together. Family and friends are so important-take time to get in touch over the holidays.

We will see you all in 2021. Happy Holidays! Stay Safe.

Enjoy the Read,

Kim
SEASON'S GREETINGS MESSAGE FROM THE PARTNERS OF WEL

Click to view our Holiday message on YouTube:
I. WEL NEWS
1.  WEL PARTNERS GIVES BACK WITH PRO BONO STUDENTS CANADA AND PRO BONO ONTARIO ESTATES & COMMERCIAL LIST AMICUS PROGRAM
On December 3, 2020, Matthew Rendely gave a presentation to a group of law students at the University of Toronto who are working on a project with the Association for Media Literacy and Pro Bono Students Canada (PBSC) as part of the curriculum. The PBSC project seeks to find, in part, what if anything, the law in Canada says about digital assets and social media profile management after an account holder’s death. You can learn about this PBSC project here:

Matthew was recently quoted in the news by Investment Executive, on digital assets and estate planning. Read Investment Executive’s article here: https://www.investmentexecutive.com/newspaper_/building-your-business-newspaper/digital-assets-and-estate-planning/
2. TRUSTED LEGACY - YOUR EVOLVING LEGACY: HONOURING AND PROTECTING THE WISDOM OF YOUR LEGACY, VIRTUAL SUMMIT SERIES
On December 2, 2020, Kimberly Whaley spoke on: “A 30K Foot View of Elder Abuse,” at Trusted Legacy. The Evolution of Estate Planning Virtual Summit Series, Honouring and Protecting Your Legacy was hosted by Christine Brunsden, Owner and Legacy Coach at Trusted Legacy, and Chris Delaney, Family Wealth Continuity Consultant and author of “The Naked Opus: Growing Your Family Wealth for the Long Term”.

For more information: www.legacyplanningsummit.com
3. CONCENTRA TRUST, DECEMBER 9, 2020
WEL hosted a virtual presentation for Concentra Trust on “Executor’s Compensation & Passing of Accounts” presented by Matthew Rendely (standing in for Professor Albert Oosterhoff), and “Fiduciary Accounts -Tips and Traps” presented by our Law Clerk, Tracey Phinnemore.

Copies of the presentation materials can be found on our website:


4. NEW REGULATION AFFECTING WILLS & ESTATES O.REG 690/20; RULES OF CIVIL PROCEDURE, JANUARY 8, 2021
Please note, effective January 8, 2021, amendments in the Rules of Civil Procedure affecting Wills & Estates, Rule 74 will come into effect. Please review the amendments and ensure compliance.  

5. STEP PRIVATE CLIENT AWARDS 2021/2022
Kimberly was invited to become a Presiding Judge for the STEP Private Client Awards 2021/2022.
6. TWO NEW HIRES JOIN OUR TEAM IN JANUARY 
WEL PARTNERS have made two new hires, details to come next month. Watch this spot!
7. WEL PARTNERS VIDEO ON ELDER LAW
We are pleased to share with you our Elder Law Video. Please feel free to share it with your colleagues.

This video is LSO accredited and contains 15 minutes of Professionalism Content, eligible for up to 0.75 Substantive Hours

The video is an overview of our recently released book, Whaley Estate Litigation Partners on Elder Law which is available for PDF download: http://welpartners.com/resources/WEL-on-elder-law.pdf 
We would be happy to send you a hard copy of our book if you wish (while supplies last). Please contact Blossom Pangowish, blossom@welpartners.com to make arrangements. 

Visit our website at https://welpartners.com/resources/publications to view our other published books.
II. SHOUT OUTS
THE HONOURABLE SANDRA CHAPNIK
JOINED AMICUS CHAMBERS
WEL PARTNERS would like to acknowledge and congratulate the Honourable Madam Sandra Chapnik on joining the esteemed roster of mediators and arbitrators at Amicus Chambers. 
ONTARIO SUPERIOR COURT OF JUSTICE, TORONTO ESTATES COURT STAFF - COMMENDABLE SUPPORT
WEL PARTNERS would personally like to thank the Toronto Estates Court Staff, including Mannie Maneli, Dora Charalambous, Bosco Mascarenhas, Alsou Anissimova, and all of the scheduling staff for their tireless attention, assistance and organization at all hours of the day/night including on weekends throughout the pandemic and in helping us to serve our clients.

We greatly appreciate the effort, time and attention spent and the help and guidance shared.
NANCY GOLDING - NEW STEP WORLDWIDE CHAIR
Congratulations to Nancy Golding QC TEP, a Partner at Borden Ladner Gervais (BLG) in Calgary, Alberta, Canada, who has been elected as worldwide Chair of STEP, effective 1 January 2021. Nancy will take over from Simon Morgan TEP, who has served two terms in the role.

15th ANNUAL STEP PRIVATE CLIENT AWARDS, DECEMBER 9, 2020
WEL PARTNERS congratulates all of the STEP Private Client Award, 2020 Recipients:

Accountancy Team of the Year (large firm)
BDO UK

Accountancy Team of the Year (midsize firm)
Frank Hirth

Advocate of the Year
Alexander Learmonth TEP, New Square Chambers

Boutique Firm of the Year
CADELL

Boutique Law Firm of the Year
ARKWOOD

Contentious Trusts and Estates Team of the Year (large firm)
Macfarlanes

Contentious Trusts and Estates Team of the Year (midsize firm)
Kindly sponsored by Rathbones
Boodle Hatfield

Family Business Advisory Practice of the Year
BanyanGlobal Family Business Advisors

Financial Advisor Team of the Year
Matrix Capital Chartered Financial Planners

International Legal Team of the Year (large firm)
Macfarlanes

International Legal Team of the Year (midsize firm)
Forsters

Investment Team of the Year
Kindly sponsored by Katten Muchin Rosenman
VAR Capital

Multi-Family Office Team of the Year
Stonehage Fleming

Philanthropy Team of the Year
Stewardship

Private Client Legal Team of the Year (large firm)
Kindly sponsored by Royal Bank of Canada
Irwin Mitchell

Private Client Legal Team of the Year (midsize firm)
Forsters

Trust Company of the Year (large firm)
Kindly sponsored by Tilney Smith & Williamson
IQ EQ

Trust Company of the Year (midsize firm)
ACCURO

Vulnerable Client Advisory Practice of the Year
Sherlynn G Chan, Stevenson, Wong & Co.

Young Practitioner of the Year
Maryam Oghanna, Herbert Smith Freehills

2020 People’s Choice - Trusted Advisor of the Year
Carmen S. Thériault QC TEP, Norton Rose Fulbright Canada

The Geoffrey Shindler Award for Outstanding Contribution to the Profession
Filippo Noseda TEP, Mishcon de Reya

Lifetime Achievement Award
Judith Ingham TEP, Withers
III. LAW REVIEW
(i) L.T. v. D.T. Estate: B.C. Court of Appeal on Posthumous Use of Reproductive Material
L.T. v. D.T. Estate, 2020 BCCA 328 http://canlii.ca/t/jbr26

By Daniel Paperny

Introduction

In a November 2020 decision[1], the British Columbia Court of Appeal upheld a lower court’s dismissal of a surviving widow’s (“Ms. T’s”) application to extract and use the reproductive material of her deceased husband (“Mr. T or the “Deceased”) to create embryos fathered by the Deceased posthumously. The impeding factor in this unfortunate case was the fact that Mr. T had not provided his informed written consent to such use prior to his death, as required by governing legislation.

Specifically, the federally enshrined legislation - the Assisted Human Reproduction Act, S.C. 2004, c. 2 (the “AHRA”) and its accompanying regulation, the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007137 (the Regulation) – expressly prohibits the removal of human reproductive material posthumously from a donor without the donor’s prior, informed, written consent.

The Court ruled that Ms. T was prohibited from using Mr. T’s reproductive material after his death. Despite the fact that she was the primary beneficiary of Mr. T’s estate, the BCCA concluded that the reproductive material could not be extracted or used by Ms. T, because Mr. T had no given his informed, written consent to such use prior to his death.

The LT v DT Estate case provides an important takeaway for will-makers who might wish to allow their surviving spouse to use their reproductive material after they die: these wishes, and informed consent to such use, must be expressed by the testator in writing before they die in accordance with governing legislation, otherwise such use may be prohibited.

Facts

Ms. T and Mr. T had been in a long-term relationship and were married for three years prior to Mr. T’s death. Shortly before the Deceased’s passing, the couple had a child together. Ms. T and Mr. T had both, in the past, expressed their intentions to have more children and both wanted a larger family and had discussed their desire for their existing child to have sibling(s) in the future.

Tragically, Mr. T died suddenly, intestate (without a will), survived by Ms. T and their infant child.

Following Mr. T’s death, Ms. T brought an urgent application seeking orders that: Mr. T’s reproductive material be removed from his body; stored at an IVF clinic of Ms. T’s choosing; and permitted to be used by Ms. T in the future to create embryos.

Unfortunately, like with most young couples, Mr. T and Ms. T never discussed what would happen if one of them were to die suddenly, and specifically did not discuss their wishes or consent surrounding the posthumous use of their reproductive material.

Section 8(2) of the federally enshrined AHRA provides that posthumous use of a donor’s reproductive material is only permitted with prior informed written consent. The relevant provision reads as follows:

Posthumous use without consent

(2)    No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the [R]egulations, to its removal for that purpose. [emphasis added]

The accompanying Regulation goes on to state:

Consent Given Under Subsection 8(2) of the Act
7  Before a person removes human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo, the person shall have a document signed by the donor stating that, before consenting to the removal, the donor was informed in writing that

(a) the human reproductive material will be removed in accordance with the donor’s consent to create an embryo for one or more of the following purposes, namely,

(i) the reproductive use of the person who is, at the time of the donor’s death, the donor’s spouse or common-law partner,
(ii) improving assisted reproduction procedures, or
(iii) providing instruction in assisted reproduction procedures;

(b) if the donor wishes to withdraw their consent, the withdrawal must be in writing;

(c) the withdrawal is effective only if the person who intends to remove the human reproductive material is notified in writing of the withdrawal before the removal of the material; and

(d) human reproductive material removed from the donor cannot be used for a purpose mentioned in paragraph (a) unless the person who intends to make use of the material has the donor’s written consent under Part 1 respecting the use of the material.

8  Before a person removes human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo, the person shall have the donor’s written consent respecting the removal of the material and the donor’s written consent under Part 1 respecting the use of the material.

While the lower court did grant an emergency interim order, which allowed the Deceased’s reproductive material to be removed and stored safely, pending the hearing of Ms. T’s application on its merits; ultimately, Ms. T’s application failed in light of the unequivocal wording of the AHRA and Regulation excerpted above.

The lower court judge “reluctantly, and recognizing the tragic circumstances before him” ruled that the legislation was expressly clear on this point: that prior informed written consent was necessary for a donor’s reproductive material to be used posthumously. Mr. T had not provided his informed written consent as required by the AHRA, and therefore, removal and use of Mr. T’s reproductive material in the manner sought by Ms. T was expressly prohibited at law. The application was dismissed.

Ms. T appealed.

Analysis

A BC Court of Appeal tribunal unanimously upheld the lower court’s ruling and dismissed Ms. T’s appeal, while also acknowledging “the painful and tragic circumstances confronting Ms. T’s family.

First, the Court noted its obligation to interpret the governing legislation objectively, plainly, while reading the AHRA and the Regulation together, and to give effect to the ordinary meaning of the statute where its language was clear and unambiguous. The Court declared that the intention of Parliament, and “the effect of the AHRA and the Regulation read together is unequivocal and clear,” in that together they set out specific circumstances where reproductive material can be harvested and used posthumously. Without the prior informed consent of the donor, such use is prohibited.

The Court found that Canadian Parliament’s intent in this regard (to limit use of posthumous reproductive material to instances where informed consent had been provided) was abundantly clear on the face of the legislation.

The BCCA noted that the AHRA was, effectively, advancing a key public policy consideration of protecting a prospective donor’s autonomy, privacy and personal interest, by ensuring that use of their reproductive material only be permitted with their prior informed consent.

The Court rejected Ms. T’s argument that the clause in the AHRA should only apply to foreseeable death and not to unexpected death as was the case with Mr. T. Nothing in the legislation supported that this was the government’s intention.

Further, the Court found nothing in the governing legislation or common law which would grant Ms. T property or possessive rights over Mr. T’s reproductive material, despite the fact that Ms. T (as the surviving spouse) was the primary beneficiary of Mr. T’s estate on an intestacy.

The Court concluded that the legislation created a “clear prohibition on removing Mr. T’s reproductive material unless the requirements of s. 8(2) [of the AHRA] are satisfied”, which in this case, sadly, they were not.

The BCCA dismissed Ms. T’s appeal but stayed its order for a 60-day period to allow Ms. T to consider whether to appeal the decision to the Supreme Court of Canada, during which time Mr. T’s reproductive material could be maintained.  

Takeaway

The ruling in LT v DT Estate provides an unfortunate and tragic outcome. Despite the fact that it was Mr. and Ms. T’s mutual intention to grow their family, while Mr. T was alive, and have multiple children, effect could not be given to this intention following Mr. T’s death because he had not expressly consented to use of his reproductive material as required by the statute.

Even though Ms. T was Mr. T’s surviving spouse and, on an intestacy, the individual with the most direct claim to control over Mr. T’s estate; the Court ruled that property or possessive rights in Mr. T’s reproductive material did not transfer to Ms. T, in part by operation of the prohibitive language in the AHRA and Regulation, which required Mr. T’s informed consent in order for such material to be extracted and used.

The ruling provides an important takeaway for spouses drafting their wills, who may wish for their surviving spouse to be permitted to use their reproductive material posthumously. Such use will only be permitted if the prospective donor provides their prior informed consent, in accordance with the AHRA prior to their death.

For more reading on this subject, you can view a pdf copy of Matthew Rendely & Kimberly Whaley’s article on Posthumously-Conceived Children published in the ESTATES TRUSTS & PENSIONS JOURNAL, Volume 38 Number 4, August 2019 on our website: https://welpartners.com/resources/WEL-ETPJ-Vol38-No4-0819.pdf

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[1] L.T. v. D.T. Estate, 2020 BCCA 328
(ii) A Holograph Will: Can It Be as Simple
as a One-Liner?
By Matthew Rendely

In Rezaee (Re)[1], the late Kamran Rezaee made a holograph will on March 20, 2018. The will was made by Mr. Rezaee at a dinner party hosted by his close friend, Siamak Naftchi. At the dinner party, Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper.

The writing was translated and reads as follows:

“I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.”

Affidavit evidence was submitted in this application that the holograph will was written and signed by Mr. Rezaee in front of a room full of Mr. Naftchi’s dinner guests.

At a motion to prove Mr. Rezaee’s holograph paper in solemn form, Charney J. ruled that based on the surrounding circumstances, Mr. Rezaee’s one line note in his own handwriting in Farsi and signed by him did in fact constituted a valid will.

Background Facts

Mr. Rezaee moved to Canada from Iran in 1983. He had no family in Canada. Mr. Rezaee was diagnosed with pancreatic cancer in October 2016, and died on August 18, 2018, at the age of 56.

Mr. Naftchi was Mr. Rezaee’s close friend. After Mr. Rezaee was diagnosed with cancer, Mr. Naftchi became his primary caregiver. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral expenses.

Mr. Naftchi testified at the motion that Mr. Rezaee wrote his holograph will knowing that his cancer was terminal, with the intention that Mr. Naftchi would inherit his estate. To Mr. Naftchi’s knowledge, Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased.

Mr. Naftchi only found the holograph will in or around November 2018, a few months after Mr. Rezaee’s death. Mr. Naftchi found the will in one of his winter jackets. It was Mr. Naftchi’s evidence that Mr. Rezaee put the will in the jacket pocket after writing it and then going to take a nap in Mr. Naftchi’s bedroom during the dinner party due to his illness.

The Application

After finding the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of Estate Trustee With a Will.

On June 18, 2019, the court issued an endorsement requiring Mr. Naftchi to prove the holograph will in solemn form. The endorsement notes that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee (PGT) shall be served with the application and notified of all court dates. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. As part of the notice requirement, Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, that this application was before the court for adjudication and that the next of kin may have rights.

Mr. Naftchi published advertisements providing notice of the death of Mr. Rezaee to any creditors or next of kin in Canada and Iran. He also retained a lawyer in Iran to file an application in the First Branch of Family Dispute of Shabestar County for issuance of an inheritance restriction certificate for Mr. Rezaee. Mr. Naftchi ultimately obtained a Judgment of the Iran court that Mr. Rezaee did not have any legal heirs in Iran. 

At the hearing of this motion for proof in solemn form, affidavit evidence from two independent witnesses was put before the court attesting to the fact that they were present when Mr. Rezaee wrote and signed the holograph will. Mr. Naftchi also swore and filed his own affidavit for use in the proceeding. The application was uncontested. The PGT was served but took no position on the relief sought by Mr. Naftchi.

The Law of Holograph Wills

The form of a holograph will is governed by section 6 of the Succession Law reform Act, RSO 1990, c S. 26, which provides that: a testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

The substance of a holograph will is governed by the Supreme Court of Canada decision in Bennett et al. v Gray / Bennett et al. v Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] SCR 392, at p. 396 (the “Bennett Case”):

[A] holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature.

In summary, the Bennett Case stands for the principle that a holograph paper is a valid holograph will if the deceased intended for it to be testamentary in nature when it was written. The document must be read as a whole and according to its ordinary and natural sense. In addition to the four corners of the document, the court may consider extrinsic evidence of the deceased’s intention and the surrounding circumstances.[2]

The onus of proof is on the propounder of the holograph will to show that the will was a deliberate or fixed final expression of intention as to the disposal of property.[3] Where suspicious circumstances are present, the party who seeks to rely on the instrument bears the onus of demonstrating that the testator had both testamentary capacity as well as knowledge and approval on a balance of probabilities.[4]

Interestingly and important in this case, the failure to use traditional language or appoint an executor does not prevent a holograph paper from qualifying as a will.[5]

Disposition

Here, Justice Charney was satisfied that the applicant had taken all necessary and reasonable measures to locate any relatives of the deceased in Canada and Iran, and that there are no legal heirs in either jurisdiction. His Honour also ruled that there is no basis to suspect that the deceased might have been incapable or under undue influence at the time the holograph will was written and signed.

While the language of Mr. Rezaee’s holograph will does not use traditional language, Charney J. was satisfied that, given the context in which the holograph was written, it “contains a deliberate or fixed and final expression of intention as to the disposal of property upon death.” In the context, his Honour determined that it was reasonable to infer that Mr. Rezaee intended his “wealth and property” to be given to Mr. Naftchi after his death. As such, the holograph will was proven in solemn form.

The rest of the decision deals with Mr. Naftchi’s application for a Certificate of Appointment of Estate Trustee With a Will. The analysis of the sufficiency of the information provided to the court by Mr. Naftchi in his application materials is outside the scope of this case review. We do although recommend that you review the decision if you wish to brush up on the law for dispensing with the requirement to post an administration bond as set out by Brown J. in the case of Henderson (Re).[6]

Takeaways

The notion “less is more” may not always be true in the context of making a will. That being said, the one-liner written by Mr. Rezaee in this case was enough for the court to determine that the holograph paper “contained a deliberate or fixed and final expression of intention as to the disposal of his property upon death.” It must be noted, however, that the propounder was fortunately assisted by the fact that the testator made and signed the holograph will in a room full of witnesses, some of whom were able and willing to attest to its execution in the application. The application was also uncontested by the PGT and any disappointed beneficiaries at law. Although a holograph will may appear to be an easy DIY estate planning tool, the value of a will drafting lawyer cannot be overstated even in light of this decision.

Thank you for reading.

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[1] Rezaee (Re), 2020 ONSC 7584 (CanLII), http://canlii.ca/t/jc16t
[2] Canada Permanent Trust v Bowman, 1962 CanLII 81 (SCC), [1962] 2 SCR 711, at p. 715; Christos Donis v Dimitra Georgopoulous and Eleni Donis, 2014 ONSC 1427, at para 14, appeal dismissed: Donis v Georgopoulos, 2016 ONCA 194.
[3] Bertolo v Nadalini, 2007 CanLII 1915, at para 31
[4] Supra note 1 at para 35
[5] Laframboise v Laframboise, 2011 ONSC 7673, at paras 14 and 15
[6] Henderson (Re), 2008 CanLII 69136 (ON SC), http://canlii.ca/t/221lx
(iii) Make a List and Check It Twice! – Attorneys for Personal Care Must Keep Track
of their Decisions
By Bryan Gilmartin
 
Introduction

It is well settled that attorneys for property have a legal duty to maintain financial accounts and records of all transactions involving the grantor or incapable person in the management of his or her property. An abundance of case law has noted that this is a serious responsibility that requires an attorney for property to keep good, detailed, and understandable accounts that reflect their diligence and transparency.

When it comes to attorneys for personal care, the question as to whether the same stringent requirements apply concerning decisions made by them on behalf of the incapable grantor, is no less clear even if lacking in an abundance of similar case law. Indeed, though there is limited case law in this regard, the legislation and accompanying regulations set out clear and concise obligations that attorneys for personal care must be mindful of.

The Law

In general, section 68 of the Substitute Decisions Act[1] gives authority to the court to make an order for directions where there is a guardian or power of attorney for personal care on any question arising in the guardianship or under the power of attorney for personal care. The request is to be made on application where no guardian has been appointed. An attorney under a power of attorney for personal care or any other person with leave of the court may apply for directions.[2]

The SDA provides the court with wide discretion to make an Order that it deems appropriate in the circumstances. Specifically, subsection 4 of the SDA provides that “A court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.”[3]

Section 66 (4.1) of the Substitute Decisions Act provides that a guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person’s behalf.[4]

Pursuant to section 3 of Accounts and Records of Attorneys and Guardians, O Reg 100/96, the records maintained by an attorney under a power of attorney for personal care and a guardian of the person shall include:

a)  a list of all decisions regarding health care, safety and shelter made on behalf of the incapable person, including the nature of each decision, the reason for it and the date;

b)  a copy of medical reports or other documents, if any, relating to each decision;

c)  the names of any persons consulted, including the incapable person, in respect of each decision and the date;

d)  a description of the incapable person’s wishes, if any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;

e)  a description of the incapable person’s current wishes, if ascertainable and if they are relevant to the decision;

f)    for each decision taken, the attorney’s or guardian’s opinion on each of the factors listed in clause 66 (4) (c) of the Substitute Decisions Act.
For ease of reference, section 66 (4) (c) of the Substitute Decisions Act sets out a list of factors to be considered when making a decision based on an incapable person’s best interests. Such factors include:

1.  Whether the guardian’s decision is likely to,

i. improve the quality of the person’s life,
ii. prevent the quality of the person’s life from deteriorating, or
iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.

2.  Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.[5]

Application in Case Law

The case of Hannis v. Tompkins[6] concerned Hilda Tompkins (“Hilda”), who suffered from Alzheimer’s disease and was not capable of managing her affairs. In 1993, with the assistance of counsel, she granted a power of attorney to the Respondents, Gary Boult and Anne-Marie Boult (the “Boults”). The Applicant in this case alleged that the Boults had mismanaged Hilda’s affairs and exceeded the scope of their authority under the power of attorney given that they made decisions related to Hilda’s personal care.

The Applicant argued that even though the Boults did not have a power of attorney for personal care, they functioned as if they had that authority and ought to be bound by section 66(4.1) of the Substitute Decisions Act. The court in this case agreed with the Applicant and stated as follows:

Because the Respondents have held themselves out to caregivers as having a power of attorney for personal care (for example, Mr. Boult specifically did not correct this impression with Cedarwood Village when his position was clarified), they should be bound by s. 66(4.1) of the Substitute Decisions Act. The Plaintiff is therefore entitled to production of records, revealing "decisions made by the guardian on the incapable person's behalf".

Takeaway

The case law that deals directly with an attorney’s obligation to keep records of personal care decisions made on an incapable person’s behalf is very limited. It is often the case that the records of an attorney for personal care are ordered to be released for the purpose of determining the adequacy and quality of care. As such, attorneys and guardians have a positive obligation to keep these records and it is prudent to consider the obligations set out in the Substitute Decisions Act and accompanying regulations. Our team have been involved in a number of court matters where orders have issued similar to accounting orders in order to resolve conflict amongst family members.

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[1] Substitute Decisions Act, 1992, SO 1992, c 30, s. 68 [SDA].
[2] Sly v. Curran, 2008 CaswellOnt 4301, at para 13.
[3] SDA, s. 68(4).
[4] SDA, s.66 (4.1).
[5] SDA, s 66 (4) (c).
[6] Hannis v. Tompkins, 2001 CarswellOnt 4853, [2001] O.J. No. 5583. 
IV. UPCOMING PROGRAMS
Women in Law in partnership with Global Lawyers of Canada
Legal Entrepreneurship and Dealing with the Boys’ Club
January 8, 2021
Speaker: Kimberly Whaley

*RESCHEDULED*
The Advocates Society
Conduct of the Estates Motion
Speakers: Kimberly Whaley & Craig Vander Zee
November 30, 2020 NEW DATE: January 20, 2021

Toronto Lawyers Association
Serious Illness Decision Making
January 28, 2021
Speaker: Kimberly Whaley

Osgoode Professional Development
Passing of Fiduciary Accounts
April 6, 2021
Chair: Kimberly Whaley
Speakers, Albert Oosterhoff, Tracey Phinnemore

Osgoode Certificate in Elder Law
Tackling Financial Abuse of Elders
April 21, 2021
Speaker: Kimberly Whaley

Estate Planning and Litigation Forum
April 18-20, 2021 (to be rescheduled)

Osgoode Professional Development
Contentious Guardianship Applications and Removals of Attorneys and Guardians
April 27, 2021
Speaker: Kimberly Whaley

LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30-May 3, 2021
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser

Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2021
Chair: Kimberly Whaley

International Federation of Ageing – 15th Global Conference on Ageing
November 10-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
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WEL NEWSLETTER December 2020, Vol. 10, No. 9