We have worked with Kavina Nagrani for a number of years now and have a number of mutual clients. Recently she sent out this newsletter and we thought the information was interesting and would be of benefit to our contacts as well.
Article provided by Kavina Nagrani of Loopstra Nixon LLP
We all strive to age gracefully, but are you striving to age wisely, and more importantly, safely?
This newsletter was created as an Elder Law forum where I can share tips and stories which I hope will in some way educate and inspire you and your loved ones to age smart!
HENSON TRUSTS SHOULD NOT BE YOUR DEFAULT PLAN FOR BENEFICIARIES WITH DISABILITIES
Quite often, clients with special-needs children ask me to draft what is known as a “Henson Trust” within their Wills. This ever popular buzz word “Henson Trust” is not always the right solution however.
Having a special needs or disabled loved one is not the sole determining factor in having a Henson Trust within your Will. There are other solutions, depending on the circumstances. Remember that a Henson Trust is completely discretionary, which, in other words, means that the trustee to whom you are leaving the assets is not obligated at law to use those assets for the intended beneficiary.
Alternatives to Henson Trusts may allow you to to achieve more security and give you further peace of mind. If you are thinking about this solution, it is important to get the right advice and a plan in place first.
DON’T LET DEMENTIA FOOL YOU!
Dementia is a complex and fascinating condition that I continue to strive to learn more about. I recently attended an estates law conference where the issue of mental capacity was discussed. It is now well accepted within the legal and health-care communities that persons with dementia can, in many cases, instruct their lawyer or health care practitioner. These instructions may relate to providing consent or refusal to treatment or making a Will or Power of Attorney document. While someone with a diagnosis of dementia may be forgetful or have more serious memory loss, they are not automatically deemed “incapable” for every important or mindful decision or task in their life. Mental capacity is time and task specific and should be assessed at the relevant time in consideration of the specific decision or task at hand.
A POWER OF ATTORNEY IS NOT A PERSON!
It’s pretty common to hear the phrase “I am her Power of Attorney!”, but the reality is, a power of attorney is a document, not a person. The person that has the authority to make decisions under the POA document is usually called the “attorney” for property or personal care, depending on the type of document executed, but even the term “attorney” in these documents confuses people. Most people think attorney means lawyer, but not in this context.
When I draft power of attorney documents for my clients, I define the person to whom decision-making authority is being given as the “Substitute Decision Maker” or (“SDM”) which makes a lot more sense to most of us! So if you are someone’s SDM under a valid POA, start calling yourself the substitute-decision maker instead of the document itself!
YOU CAN’T CHARGE ME WITH ELDER ABUSE! THERE’S NO SUCH THING!
True. Under our Criminal Code, there is no crime termed “Elder Abuse”, but this catch phrase has quickly and unfortunately evolved out of the high number of actual criminal offences involving victims over the age of 65.
I’m talking about fraud through misrepresentation, failure to provide the necessities of life, assault (both physical and sexual) and theft, to name a few. So whenever you call the police, notify an elder abuse service, or contact your lawyer about what you believe to be an elder abuse situation deserving of punishment at law, it is important that your claims are supported by evidence of the underlying criminal offence. If your sibling is manipulating your parent or mistreating them, their behaviour may be improper, and unconscionable, but it may not reach the level of a criminal offence without something more.
“While my job title may be ‘lawyer’, I like to think of myself as an elder advocate, trusted advisor and, most importantly, someone who just simply cares.”
Kavina Nagrani is a lawyer with the mid-size law firm, Loopstra Nixon LLP, in Toronto, Ontario, practicing mainly in areas of:
- Elder Law
- Wealth Management / Estate & Trust Planning
- Capacity & Guardianship Law
- Wills & Estates & Powers of Attorney
About Loopstra Nixon LLP
Loopstra Nixon is a full-service Canadian business and public law firm dedicated to serving clients involved in business and finance, litigation and dispute resolution, municipal, land use planning and development, and commercial real estate. Major financial institutions, insurance companies, municipal governments, and real estate developers along with corporate organizations and individuals are among the wide range of clients we are proud to serve.
About Legacies & Liberties
This article contains general information only. Legacies & Liberties is a brief canvasing of the topic presented and should not be relied upon as professional advice in making any personal or business decisions. Always consult with a licenced legal professional before making any decisions regarding your own personal or business needs. The author takes no responsibility to update any of the information presented in this article. All rights reserved. © Looptra Nixon LLP 2017
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