Question 1

Adult Gaurdianship

Accepted Answer

We also make court applications for the set-up of a Trustee and a Guardian for a Represented Adult.  We can also assist with the reporting and accounting to the courts after a Represented adult application has been granted. A Court application is necessary when a loved one has lost the capacity to make decisions on their own, or lacks the physical ability to take care of themselves, or both.  The court has to appoint a Guardian for the healthcare decisions and a Trustee to look after their assets.   These applications become necessary when the individual was born with a developmental delay and has not been able to overcome it.  Just before their 18thbirthday, it is necessary for their parents / guardians to make a Represented Adult application to continue to have legal authority to look after their affairs, both financial and medical.   In other situations, it is an older adult that has suddenly lost capacity due to illness or injury and it becomes necessary for the family to make a court application.  The cost, effort and complexity of these court applications can be avoided if the individual is able to sign an Enduring Power of Attorney and a Personal Directive prior to losing their capacity.

Question 2

Estate Administration & Probate

Accepted Answer

I provide the following services for Estates: Grant of Probate for Wills; Grant of Administration (if there is no Will, or the Will only covers a portion of the estate); Administration of Estates; Counseling Executors in administration of estates; Mediation and Collaborative Law in resolving estate disputes; Represented Adult applications, reviews and reporting to the Courts; Representation of claimants and creditors for resolving disputes and in estate litigation; Representation of executors and beneficiaries for resolving disputes and in estate litigation.   Probate of Estate: We draft the paperwork for obtaining a Grant of Probate (if there is a will) or a Grant of Administration (if there is no will, also called Intestate) or a Grant of Administration with Will Annexed (if the Will is insufficient in some manner).   The Grant is a court order appointing the Personal Representative (also called the Executor, Trustee or Administrator) with the authority to deal with the estate.  The court application also gives notice to the public (financial institutions, life insurance companies, and government offices, such as Land Titles, Canada Revenue) that the Estate of the deceased is being distributed.  The court process assures the persons and institutions dealing with the Estate that there has been public notice provided, as well as specific notice to relevant persons, and that the estate can be safely distributed.   Obtaining a Grant protects your Executor(s) from personal liability in distributing the estate assets and paying estate debts, including filing for the final Clearance Certificate from Canada Revenue Agency for income tax and capital gains. Without a Grant from the court, the executor may be personally liable for distributing an Estate if he/she does so improperly.  There are situations when a Grant is mandatory, such as when Real Estate has to be transferred from the deceased’s name, or when financial institutions have to transfer account balances to the estate.  These transactions require a Grant to protect the bank prior to the transfer; the Grant provides liability protection for the banks, institutions and, to a certain extent, the personal representative.   Estate Litigation: We also provide legal services in Estate Litigation.  There are many situations that can arise in the distribution of an estate, such as disagreements over the distribution of specific assets, valuation of assets, payment of debts, collection on debts, forgiveness of debts to the estate, an alleged improper/invalid Will, an improper or unreasonable distribution of an estate, undue influence in writing a Will, undue influence in making a gift prior to death, a dependent person not receiving sufficient maintenance funds, personal representative compensation, etc.   Represented Adult Applications: We also make court applications for the set-up of a Trustee and a Guardian for a Represented Adult.  We can also assist with the reporting and accounting to the courts after a Represented adult application has been granted. A Court application is necessary when a loved one has lost the capacity to make decisions on their own, or lacks the physical ability to take care of themselves, or both.  The court has to appoint a Guardian for the healthcare decisions and a Trustee to look after their assets.   These applications become necessary when the individual was born with a developmental delay and has not been able to overcome it.  Just before their 18thbirthday, it is necessary for their parents / guardians to make a Represented Adult application to continue to have legal authority to look after their affairs, both financial and medical.   In other situations, it is an older adult that has suddenly lost capacity due to illness or injury and it becomes necessary for the family to make a court application.  The cost, effort and complexity of these court applications can be avoided if the individual is able to sign an Enduring Power of Attorney and a Personal Directive prior to losing their capacity.   If you have any questions or concerns about Probate, Administering an Estate or Represented Adults, please contact us to discuss.

Question 3

Personal Directives | Living Wills

Accepted Answer

A Personal Directive is a document that provides your loved ones with your wishes, values and priorities with respect to personal decisions, such as, healthcare, living arrangements, lifestyle choices, treatments and refusal of treatment.   The PD names at least one person to be your “Agent” to make decisions for you, and, ideally it should name at least 1 or 2 alternates in case the first named person cannot act.   The PD needs to be signed, dated, witnessed and completed while you still have capacity understand your instructions.   Primarily, a PD gives authority to another person(s) to be your “Agent” and to make medical decisions on your behalf.  Your Agent can also deal with all personal matters that are not financially related.  These decisions include:  participation in social, educational and employment activities, where you live, your accommodations, healthcare choices, with whom you may associate, and so on.   You can also direct what levels of medical treatment you want under certain circumstances; and, you can authorize withdrawal of treatment under certain circumstances.  However, the directions in a personal directive cannot direct medical assistance in dying (MAID), euthanasia or other similar decisions.  The law in Canada in this regard is always being reviewed and may change at some point in the future; more on MAID later.   The Personal Directive only takes effect after a medical practitioner certifies that you no longer have the capacity to make your own decisions.  You are deemed to have lost capacity upon the written certification of a qualified medical practitioner.  The Personal Directive ceases to be in effect during periods when you have regained capacity and, of course, on your death.   I recommend that you consult with a doctor prior to executing a Personal Directive to discuss your circumstances including your health, prognosis and how different choices and treatments, or refusal of treatment, may affect you.   An important consideration is whether you want your Personal Directive to be specific with detailed instructions or if you want to keep it general and let your Agent make the specific choices at the appropriate time.  There are pros and cons to each.   The more specific direction you provide, the less of a burden there is on your Agent to make a choices.  However, if you are very specific, that may leave your Agent with fewer options if medical advances are made and new treatments become available.   The more general you leave your PD, the more choices and options the Agent can consider, but they may feel the burden of having to make certain decisions.   It is always important that your Agent and your close family know your values and preferences, so your Agent can make the proper decision at the relevant time and the rest of your family is aware of why that decision is being made.

Question 4

Is a Personal Directive needed

Accepted Answer

If you do not have a Personal Directive, your family will have to apply for a court order naming a Guardian to handle your affairs.  This takes time, causes delays in making decisions and accessing services and costs your estate significantly more money than having a valid Personal Directive in place.  That is referred to as a Represented Adult application.   A roadblock I see quite frequently is that people feel that they are still young and healthy and they do not need to worry about mental incapacity.  I always recommend that you make a PD as soon as you are an adult, have a family, start a business and especially if you have children of any age, regardless of your current age or state of health.   Another hurdle is that people believe that their spouse or the doctors can make healthcare decisions by default.  The doctors only make decisions and act while there is an emergency.  Once the emergency has passed any long-term medical, treatment, healthcare and accommodation decisions need to be made by someone with authority.  No one, not your spouse, child, sibling or parent has automatic authority to make these decisions.   Also, some believe that the Green Sleeve they do with their doctor is sufficient.  The Green Sleeve is used to address Goals of Care and Healthcare Directives under certain circumstances.  There is a PD included in the Green Sleeve, however, you have to make sure that you have completed the PD properly for it to have authority; simply completing the Goals of Care does not give another person the authority to make decisions if you lose capacity.  Further, the Green Sleeve is generally only used when it is time to start addressing Goals of Care.   Personal Directive Registry:  In Alberta you can register the contact information from your Personal Directive with Alberta Health Services, making your information quickly and easily accessible by healthcare providers.

Question 5

Terminology - Personal Directives

Accepted Answer

Agent:  The person you appoint to make personal decisions for you.   Alternate Agent:   The Agent that you name to act if the prior named Agent(s) becomes unable to fulfill their duties.   GCD:  Goals of Care Designation. Goals of Care Designation (GCD):  Is a medical order written by your doctor and healthcare team in discussion with you.  It sets out what your current goals are considering your current health circumstances.  Only your doctor and medical team should write on this form.    Not everyone needs a GCD.   Alberta Health Services:    https://myhealth.alberta.ca/Alberta/Pages/advance-care-planning-goals-of-care-designations.aspx   Green Sleeve:    Is a green plastic pocket or folder that holds all of your advance care planning forms.   You may obtain one from any health care provider.   Alberta Health Services:   https://myhealth.alberta.ca/Alberta/Pages/advance-care-planning-green-sleeve.aspx Guardian:   In this instance, a Guardian is the person appointed by the court to make personal decisions for a Represented Adult.   Living Will:  In Alberta we do not have Living Wills, instead we use Personal Directives.  A Living Will and a Personal Directive are the same type of document.  They both name someone to make decisions for you in case you are unable to and list your healthcare values and wishes.   Medical Assistance In Dying:    Occurs when a patient instructs their healthcare provider to intentionally bring about their death.   Canada:    https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html   Alberta:  http://www.health.alberta.ca/health-info/medical-assistance-dying.html   MAID:  Medical Assistance In Dying.   PD:   Personal Directive. Personal Decisions:   Any decision that is non-financial, such as: healthcare, where you may live, who you may associate with, give consent or authorize withdrawal of treatment, and other personal decisions.   Personal Directive:   A written, signed and witnessed document that names an Agent to make personal decisions for you if you become incapacitated to do so.  You may also set out your wishes in the PD to ensure your Agent and your family know what you wanted.   Personal Directives Registry:   In Alberta you can register the contact information from your Personal Directive with Alberta Health Services.  This information is quickly accessed by healthcare providers if they need to know who to contact.   Registry Information:  https://www.alberta.ca/assets/documents/personal-directives-registry-registration-form.pdf   Represented Adult:   An adult who is or has become unable to communicate or make their own decisions.  A Guardian is appointed through a court process, the Guardian then has authority to make personal decisions on behalf of the Represented Adult.

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