WEL NEWSLETTER November 2020, Vol. 10, No. 8
Hello,

I am grateful for your continued support of me, and our team. Over the past several months, our team has worked tirelessly and resolutely for our clients. In the face of adversity of the all consuming-pandemic type, each has stepped up and given their best to make our team stronger and to remain successful in our united objectives. Those of you who have referred a file, or a mediation, you know who you are - we appreciate your generosity more than ever and thank you.

We are in month nine. Many of us are taking this battle in stride, some are having a bumpier ride. 

The cold, dark, winter months are upon us. My latest sense of all of this, is that I cannot help feeling anything but trapped. It conjures up memories of my reading of the book by Maya Angelou, I Know Why The Caged Bird Sings: a story of many challenges and hurdles, and rising to those challenges. Of course, those challenges that Maya Angelou spoke of, also give perspective. The personal life challenges she spoke of were life altering in a different way than trying to survive a pandemic. They are heartrending and inspiring renditions of suffering, injustice and survival. 

There has been a great deal of suffering put upon individuals and families in illness and in death throughout this pandemic as there too have been financial implications, businesses failing and dreams being lost, or postponed. My memories were really conjured up not so much by the story, but rather my ongoing fascination, wonderment, and search for the full meaning of the title of the book and the use of the word “caged.” A metaphor of course for the imprisonment felt, the confinement.... A day does not go by these days when I don’t feel caged. I know this too shall pass. Maya Angelou also lived by her words, “Hoping for the best, prepared for the worst, and unsurprised by anything in between.” 

So that is how I shall proceed and address the remainder of this winter, and the pandemic.

Litigation, I always say, is a luxury-it is costly, stressful and uncertain. The pandemic carries the same characteristics of stress, uncertainty, and high costs but with profound and possibly long-term impact and hence the ups and downs of a small boutique practice are felt even more loudly.  While we await better times, we carry on.  

Stay Safe and Keep Well, 

Enjoy the Read,

Kim
I. WEL NEWS
1. ERRATUM: LINK TO ALEX PROCOPE’S ARTICLE REFERENCED IN THE OCTOBER NEWSLETTER
Below is the correct link to Alex’s Paper: “The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward” referenced in News item 9. ONTARIO BAR ASSOCIATION, ELDER LAW, TRUST & ESTATES PROGRAM, OCTOBER 26, 2020. 

2. ONTARIO POLICE COLLEGE SEMINAR, NOVEMBER 23, 2020
Daniel Paperny and Bryan Gilmartin presented on Elder Abuse at the Ontario Police College in Aylmer, November 23, 2020. 

View the presentation:
3. STEP TORONTO CONNECTION, BRANCH NEWSLETTER
Kimberly’s article “The Ever-Evolving Role of Section 3 Counsel” was published in the STEP Toronto Connection, November 2020, Vol. 8 No. 3 newsletter.

Read the article on the WEL Blog:

STEP members can access the full newsletter here (login required):
4. MEET LAROUX PEOPLES: MAKE A WILL MONTH 
Laroux is an Estate Planning lawyer with a personal touch.

November is Make a Will Month, a good reminder for those who need to make their first Will or do an update. 

Laroux is a Wills & Estates lawyer who has spent the past six years making estate plans for individuals and families and administering estates. It is in the administration process, that Laroux has seen the value of dying with a Will and, more specifically, dying with a properly lawyer drafted one. Homemade wills, while a well-meaning attempt to save costs, can cause significant additional cost and delay to an estate if the wording needs to be clarified. 

It is most important to do a Will in order to decide where you would like your assets to go and who you would like to manage your affairs. If you don’t there is a legal order dictated by the Succession Law Reform Act (“SLRA”). This is especially important if you are in a common-law relationship as common law partners are not in the list of beneficiaries under the SLRA. For example, if you were to die leaving a common law spouse and parents and no children, your parents under the SLRA inherit everything.

In addition, dying without a Will in many cases requires your loved one to apply for a Certificate of Estate Trustee Without a Will (also known as the probate process). In COVID-19, this process in Toronto has been greatly delayed. Applications that used to take four months have been taking double that time and many executors are paying significant upfront costs to manage the estate in the interim. 

The added value of doing your Will with an estates lawyer is that in addition to drafting your Will, they will go over your beneficiary designations. Beneficiary designations are a crucial component to the estate planning process. They can be the difference between having to probate an estate or not, having to litigate an estate or not. Designating an asset, when done properly, allows that asset to pass outside the estate making it not subject to probate and creditors. A carefully crafted estate plan will account for tax consequences ensuring that the estate has sufficient liquidity to pay the tax liabilities. 

So don’t delay, get your estate plans made or make them up to date!

Laroux’s professional details can be accessed on her website: 

5. TRUSTED LEGACY: THE EVOLUTION OF ESTATE PLANNING, DECEMBER 2, 2020
Are you living and creating your best legacy? What is your strategy for communicating your legacy to those who are most important to you? Does your planning really reveal the purpose and passions that animate your life?

Legacy planning is an especially important topic as changing demographics fundamentally alter the planning landscape. Learning how to live, communicate and share your legacy is vital to an estate plan crafted with purpose.

That’s why I am really excited to draw your attention to Legacy: The Evolution of Estate Planning virtual summit.

This complimentary event features more than 50 speakers on a variety of topics spread over 5 days in November and December. You will hear about:

  • Envisioning, Building & Communicating Your Best Legacy
  • Creating a Responsible Stewardship and a Legacy that will Endure
  • Strategies and Mindsets to Honor and Protect the Wisdom of Your Legacy
  • Legacy Planning for all of Life’s Transitional Stages from Zoomer to Boomer
  • Legacy Planning for People with Disabilities
  • And much more…….

Information and registration: https://bit.ly/38ticgk

Are you ready to change your legacy mindset?

Check out the Legacy: The Evolution of Estate Planning virtual summit event web page to see the array of speakers, special features including live Q & A sessions and recordings, dates and registration information.
6. OOSTERHOFF ON WILLS, 9th EDITION: GOOD NEWS 
Professor Albert Oosterhoff is completing his final revisions to the 9th edition of his Wills text, Oosterhoff on Wills, WATCH FOR IT! Carswell release anticipated Spring 2021. 
7. TORONTO POLICE SENIORS’ ASSOCIATION, VULNERABLE PERSONS
The Toronto Police Vulnerable Persons Coordinator, Constable Mark McCabe, would like to share the seniors related pamphlets and the relevant links to help spread the word about senior’s abuse.




Abusive Relationship:

TPS Vulnerable Persons Registry:

Crime Stoppers:

Twitter:
Constable Mark McCabe: @IrishTPScop
Acting Superintendent Paul MacIntyre: @InspMac
TPS Community Partnership & Engagement Unit: @TPS_CPEU

Facebook:
TPS - Seniors Community Consultative Committee: https://www.facebook.com/TPSSeniorsCCC
Constable Mark McCabe:
Acting Superintendent Paul MacIntyre:
TPS Community Partnership & Engagement Unit: https://www.facebook.com/CPEUTPS
TPS:
8. 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
DR. EILEEN de VILLA
WEL Partners extends our gratitude to Dr. Eileen de Villa for her dedication and commitment to the health and safety of the City of Toronto. 

Dr. Eileen de Villa is the Medical Officer of Health for the City of Toronto. Dr. de Villa leads Toronto Public Health, Canada’s largest local public health agency, which provides public health programs and services to 2.9 million residents.

Prior to joining Toronto Public Health, Dr. de Villa served as the Medical Officer of Health for the Region of Peel serving over 2 million residents.


LAW COMMISSION OF ONTARIO (LCO) APPOINTMENTS
The Law Commission of Ontario has announced the appointment of three new members and WEL Partners would like to extend its congratulations to: 

The Honourable Paul S. Rouleau 
(representative for the Judiciary, effective November 12, 2020)

Geneviève Painchaud 
(representative for the Law Society of Ontario, effective October 15, 2020)

Jane N. Mallen 
(representative for the Ministry of the Attorney General, effective September 10, 2020)
III. LAW REVIEW
(i) Inside Britney’s ‘Toxic’ Guardianship War 
By Daniel Paperny

Introduction
 
Let’s flashback sixteen years to 2004. A Harvard student named Mark Zuckerberg has just created a new social media platform called “The Facebook”; the final episode of Friends airs; the Expos say adieu to Montreal; and Britney Spears is the hottest pop-star on the planet, having just released her chart-topping single “Toxic”. A simpler time.

Obviously, things have changed over the last decade-and-a-half. In many ways (without going into detail) you could say our world has grown more toxic since those innocent days at the beginning of the century. This is especially true for Britney Spears who has fallen from superstardom and is now embroiled in an ugly legal dispute with her father, James Spears, over the control of Britney’s finances and personal care. 

James has wielded decision-making power over his daughter’s health care decisions and financial assets, which include her $60M music empire, for over a decade, since Britney was declared incapable of managing those aspects of her life due to concerns about her mental health. Now, in a heated court fight (which has generated its own #FreeBritney movement) Britney is asking that her father be removed from his position of authority because, she says, the relationship between them is neither sustainable nor healthy and her dad’s involvement is not in her best interests. James argues that Britney is not capable of managing her affairs and that he is the most appropriate person for this guardianship role. So far, the courts have sided with James, maintaining his guardianship over Britney’s affairs.

Guardianships, Generally
 
A guardianship (or a “conservatorship” as it is referred to in California, where the Spears litigation is unfolding) is a regime that can be put in place as a means of managing the affairs of an individual under disability who, for whatever reason, is not capable of managing their property and/or personal care. 

In such circumstances, a court may appoint a “guardian” (or “conservator”) who is legally authorized to make decisions on the incapable person’s behalf. The guardian assumes the role of fiduciary, and owes a solemn fiduciary duty to always act in the best interests of the incapable person.  

In Ontario, guardianship appointments are governed by statute, specifically the Substitute Decisions Act, 1992, RSO 1990, c C.12 which provides for two types of guardianships: Guardianship of Property, and Guardianship of Person.

A guardian of property, once appointed, can do on behalf of the incapable person anything that the incapable person could normally do in relation to his/her property (including selling assets, paying bills, attending to legal matters) except make or change a will[1]. A guardian of property may be appointed when an individual is deemed incapable of managing his/her property or “not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decisions[2].

A guardian of person may be appointed where an individual is deemed to be incapable of personal care or “not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision[3]. A full guardian of person appointment provides broad powers to the guardian to make a range of decisions on behalf of the incapable person regarding living arrangements, shelter and safety, health care decisions and even their employment and legal affairs[4].

In California, the laws in respect of guardianships are somewhat similar to those Ontario, in that a court can appoint a “conservator” to oversee or manage a person’s financial or medical affairs, where the latter individual has been deemed incapable of doing so themselves.

It goes without saying that guardianship/conservatorship appointments are very serious matters, conveying sweeping authority to the guardians and severely limiting the autonomy of the incapable person. It is for this reason that guardianship appointments are often considered to be appointments of last resort, however, in many instances they are a necessary step in order to ensure that a person’s finances and health care decisions are properly managed.

The ultimate consideration in any guardianship appointment is the best interests of the incapable person, and courts will generally only award guardianship over an incapable individual’s affairs to a person (or corporation) if it appears to be in the incapable individual’s best interests.

The Spears’ Saga
 
Back to Britney’s blow-up with her dad, James. This ordeal dates back to 2007, and Britney’s messy divorce from her former spouse, Kevin Federline (aka K-Fed). Britney was in the midst of a public mental health breakdown at the time, which saw her shave her head, attack a paparazzi’s car with an umbrella, engage in dangerous behaviour with her young children and committed to psychiatric facilities on multiple occasions. At the time, these antics were fodder for tabloids that were obsessed with Britney in the wake of her very public divorce, however there were also legal ramifications that were not publicly known at the time.

Britney’s erratic behaviour, and underlying mental health problems, gave rise to a guardianship/conservatorship being granted to her father, James, who was appointed by a California court as Britney’s conservator in 2008 and put in charge of making all decisions regarding Britney’s finances and personal care, after it was found that Britney was not capable of doing so herself.

Since that time, James has managed Britney’s multimillion-dollar media enterprise, making all decisions relating to her career and business on Britney’s behalf, in addition to managing Britney’s health care decisions. Despite this conservatorship which has been in place for 12 years, Britney has remained relatively active in her career, rolling out four albums and holding down a four-year Las Vegas residency during that time.

However, recently, Britney has made attempts to have James removed as her conservator. In September of 2020 Britney asked a California court to remove her father as her conservator, because she no longer shared a viable working relationship with him and that, in her submission, his involvement as her guardian of property and person was not in her best interests. James, on the other hand, argues that: he has always acted in Britney’s best interests since being appointed her conservator in 2008; he has in fact helped her grow her business empire and improve her health during that time; he is the most appropriate person or entity to act in this role; and Britney is mentally incapable and lacks capacity to make decisions on her own behalf regarding her care or finances, so her assessment of the situation cannot be accepted.

In a recent November 2020 ruling, a Los Angeles court denied Britney’s application to have James removed as her conservator. However, the court did appoint a corporate guardian, a company called Bessemer Trust, to act as co-conservator alongside James. This can be seen as at least a partial victory for Britney, as it means that her father no longer has sole control over her affairs, but must act together with a corporate trust company in carrying out decisions on behalf of Britney.

The new development will likely be welcomed by Britney Spears’ loyal fans who have formed the “#FreeBritney” movement on social media, which is aimed toward having Britney liberated by what her fans perceive as the overbearing and unjustified control of her father as her conservator.

The Spears guardianship litigation is set to continue with fresh hearings in 2021, and it will be interesting to see how these matters develop and whether James is permitted to remain as Britney’s conservator, despite Britney’s apparent objections to same.

Conclusion
 
The Britney Spears conservatorship dispute raises many issues that we commonly see in the context of guardianship proceedings. Primarily, it identifies the difficulty in determining what is actually in the best interests of a person who has been deemed incapable, but who voices their objection to a specific guardian acting that has been appointed by a court to act in that person’s best interests. Ultimately, the primary consideration for any court in appointing a guardian will always be the best interests and well-being of the incapable person. However, in many cases, it can be difficult to ascertain how the person’s interests are best served, especially when their own capacity and ability to make decisions for themselves has been challenged.  

Oftentimes, courts may be reluctant to change a guardianship appointment, especially one that has seemingly worked well for many years, because a judge may be apprehensive about disrupting the status quo and, potentially, prejudicing the interests of the incapable person as a result.

In circumstances like the Spears Guardianship litigation, a court is put in a difficult situation. James Spears may have his daughter’s best interests at heart, he may have done a fine job managing Britney’s affairs as her conservator since assuming that role in 2008, however, now Britney (having previously been deemed incapable) seeks her father’s removal from this post. Of course, the court wants to do what is best for Britney, the question is whether she is capable of knowing what is in her own best interests, given her alleged mental health issues. Most often, such cases are determined by the medical evidence or expert opinions commenting on what is best for the subject of the guardianship, and whether the allegedly incapable person is able to make informed decisions in regards to same.  

In Ontario, such evidence can come in the form of capacity assessments, conducted by qualified capacity assessors who are able to assess and comment on an alleged incapable person’s ability to manage their property or person within the meaning of the SDA. In addition, “Section 3 counsel” can be appointed for the allegedly incapable individual; s.3 counsel can advocate for the allegedly incapable person and convey their interests and wishes to the court in the context of contested guardianship proceedings.

---
[1] SDA, s. 31.
[2] SDA, s. 6.
[3] SDA, s. 45.
[4] SDA, s. 59.
(ii) Grounds to Remove an Estate Trustee Due to Conflict of Interest
Viertelhausen v. Viertelhausen[1], 2020 ONSC 6744 http://canlii.ca/t/jbg33

By Sareh Ebrahimi

Introduction

If an estate trustee is not fulfilling their duties and is not acting in the best interests of the estate, anyone with a financial interest in an estate can apply to have an executor removed.

In the recent case of Viertelhausen v. Viertelhausen[2], the court had to determine if there were grounds to remove the estate trustee due a to conflict of interest. The application was brought by the Deceased’s niece against her other uncle who obtained a Certificate of Estate Trustee Without a Will.

Background Facts

The deceased, Bote Viertelhausen ("Bote”) died unexpectedly intestate on September 20, 2019. Bote's brother, the respondent, William Viertelhausen ("Bill"), obtained a Certificate of Appointment of Estate Trustee Without a Will. At the time of Bote’s death, Bill was his guardian for property and personal care.

In January 2020, the applicant, Teresa Viertelhausen ("Teresa"), one of Bill and Bote's nieces, commenced an application to remove Bill as estate trustee as the certificate of appointment was issued in error of “key information”, as Bill is in a conflict of interest which precludes him from administering the estate even-handedly and impartially, and to pass his accounts.

Without notice to Bill, Teresa obtained an order that required Bill to return his Certificate to the registrar.

Bill opposed Teresa's application and maintained that he was properly appointed estate trustee and that there was no conflict of interest. He was prepared to consent to an order requiring a formal passing of accounts of the estate, reserving his right to seek compensation and costs.

Conflict Of Interest

The central issue the court had to determine was whether Bill was in a conflict of interest rendering him incapable of administering Bote's estate even-handedly and impartially.

In support of her position, Teresa stated that Bill engaged in prior litigation against Bote, that she was not served with the Notice of Application and was therefore deprived of the opportunity to file an objection to Bill's appointment as estate trustee, and that there was "clear animosity" between Bill and Teresa, as a result of Bill's administration of his mother's estate.

The court reviewed the applicable legislation and case law concerning the removal of an estate trustee and by whom the application may be brought. There is no dispute that Teresa had a financial interest in Bote's estate and therefore, was entitled to bring the application.[3]

The court stated:

[33]  ……An estate trustee may be removed if it is in the best interests of the trust and its beneficiaries to do so. The main guideline is the welfare of the beneficiaries[4]: Crawford v. Jardine, [1997] O.J. No. 5041(Ont. Ct. (Gen. Div.)), at para. 18, citing Letterstedt v. Broers (1884), 9 App. Cas. 371 (P.C.), at 385-387. Actual incidents of alleged misconduct are generally provided but actual misconduct is not a prerequisite to removal:

. . . if it appears that the continuance of the trustee would be detrimental to the execution of the trusts . . . [because it] would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee . . . the trustee is always advised by his own counsel to resign, and does so. If, without any reasonable ground, he refused to do so, [then] . . . the Court might think it proper to remove him: Letterstedt, at 386.

Upon reviewing the record and the facts of the matter, it was evident to the court that there was nothing to support Teresa’s allegation that Bill was in a position of conflict and therefore be removed as estate trustee.

The court found that Theresa had been served with the Notice of Application. However, she did not file any objection to Bill’s appointment and therefore, Bill was granted the certificate of appointment.

After reviewing the factual context of the litigation between Bill and Bote, the allegation of conflict of interest was without merit.

In respect of the allegation that Bill had not administered his mother’s estate properly, the records showed that all beneficiaries, including Teresa, signed a comprehensive release in which the beneficiaries confirmed the approved accounts, and Teresa raised no objection to the quantum and asked no questions about the accounts.

The court found all of Teresa’s allegations to be baseless and ordered the immediate return of the Certificate of Appointment of Estate Trustee Without a Will to Bill. Costs were awarded to Bill.

Takeaway

Remember, courts do not remove and replace Estate Trustees easily. Misconduct by the Estate Trustee must be evident to warrant his/her removal.

---
[1] 2020 CarswellOnt 16034, 2020 ONSC 6744.
[2] 2020 CarswellOnt 16034, 2020 ONSC 6744.
[3] Rule 75.04 of the Rules of Civil Procedure provides that on the application of a person appearing to have a financial interest in an estate, the court may revoke the certificate of appointment of the estate trustee where the court is satisfied that the certificate was issued in error or as a result of a fraud on the court.
(iii) An Update from the OBA Elder Law Executive on CPD Programming
By Matthew Rendely 

Matthew Rendely (of WEL Partners) and Alexander Procope (of Perez Bryan Procope LLP) are the current CPD Liaisons for the OBA Elder Law Executive Committee.
 
Despite the inability for colleagues of our Bar and others to congregate in person, this year’s CPD programming is already proving to be as engaging and informative as ever before.

This year, the OBA Elder Law Committee has already put on two well-attended programs: Utilizing Real Estate Transfers for Estate Planning Purposes and Your Comprehensive Guide to Section 3 Counsel Under the SDA (which was co-chaired by our own Kimberly Whaley). 

Keep up to date with this year’s programming and be sure to join us for our next two webcast events: 



Excellent panels of chairs and speakers are lined up for these events. Of note, the Honourable Justice Eileen E. Gillese of the Court of Appeal for Ontario will be speaking at the program on December 9th about the report that she delivered to the government in a public inquiry into safety in long-term care homes in Ontario, following the tragic murders perpetrated by Elizabeth Wettlaufer.

You can find more details (including available CPD accreditation) for each of these upcoming programs and register to attend by clicking on the links above.
Stay tuned to our newsletter for more programming updates! 
IV. UPCOMING PROGRAMS
Elder Abuse in Canada
Speaker: Kimberly Whaley
December 2, 2020

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

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
V. WEL FEATURE SERIES
VI. IN CASE YOU MISSED IT - RECENT BLOG POSTS
VII. CONNECT WITH WEL
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WEL NEWSLETTER November 2020, Vol. 10, No. 8