“Elder Mediation” – What does an Accredited “Elder Mediator” do?

“Elder Mediation” is probably more appropriately called multi-generational, multi-party family mediation.  Unlike mediation for separation and divorce, which typically involves only two parties, Elder Mediation sees the participation of all relevant family members, other caregivers, sometimes friends who are involved in care and sometimes support people who may assist an older adult to feel cared for and confident.

“Elder mediators” are accredited after extensive training specifically with respect to the issues relevant to people as we age.

Some of the issues that can be resolved using this type of mediation include:

  • estate and retirement planning
  • driving and transportation
  • housing and living arrangements
  • health care and medical decision making
  • safety in community and at home
  • concerns a family member or friend may have around abuse and neglect of an older person
  • caregiver responsibility
  • new relationships, marriages and blended families
  • religious issues
  • holiday schedules
  • relationships with grandchildren
  • financial concerns
  • family business planning
  • guardianship
  • end of life issues

Family dynamics, different levels of involvement and information and varying interests can make conversations around these issues difficult in a family.  Mediation provides a respectful, safe environment in which families, friends and caregivers can have important and often challenging conversations about the problems the people we love face as they age.

Marian Gage is one of a growing number of mediators in Ontario who has been accredited as an Elder Mediator with the AccEM designation (OAFM).  If you have questions about how this process can help you or somebody you care about please contact Fiona Bryan at fbryan@bgfamilylaw.ca.

Who Should I Appoint as Guardian for my Children?

by Bethany Anderson

It can be really difficult to decide (or even think about) who should look after your minor children if you pass away before they reach the age of majority.  But don’t let that keep you from preparing your Will.

Your Will allows you to appoint a temporary guardian or custodian of your children – this is effective for the first 90 days following your death.  After that period, a permanent guardian is appointed by court application.

Consider factors such as where the guardian lives, how well your children know them, whether they are in a position to maintain the children’s ties to extended family, their circumstances, and their ability to maintain as much normality as possible for your children (continuing their sports and activities, schooling, family relationships, religion, etc.).  The funds that you leave for your children in trust will be used to help raise and care for your children and will be considered as part of the guardianship plan that forms part of the court application for permanent guardianship.  You do not have to control all the details now – your Will can be made flexible enough to assist under whatever circumstances exist at the time of your death.

bethany

Bethany is a Wills and Estates lawyer at Berry Gage LLP.

Contact Bethany with any questions at: Banderson@bgfamilylaw.ca or 905-338-7941

How Do I Choose My Estate Trustee (Executor)?  Here are some things to consider…

By Bethany Anderson

Choosing an estate trustee (executor) is an important decision and your ideal choice will depend on a number of factors.  Spouses often appoint each other but need to consider an alternate estate trustee for after both spouses have passed away, or in case the surviving spouse has become incapable.

There are some qualities that you should ensure the person you are appointing has, such as trustworthiness, organization, possibly negotiation skills, and at least a basic understanding of finances.  As you age, you should also consider the age of your alternate estate trustee and try to find someone younger than you, if possible.

It is best to appoint Estate Trustees who reside in Ontario, or within Canada.  Appointing a Trustee who resides in the United States, for instance, can carry with it a host of issues, such as cross border taxation concerns, the requirement to post a bond, and practical/logistical issues related to dealing with assets in Ontario.

The people you appoint need not be experts in all fields; a proper Will usually provides your Trustees with the power to hire the professionals he or she may require, such as accountants, lawyers, financial planners, etc., and to pay them their ordinary fees.

Your Estate Trustees are fiduciaries and need to make decisions that they will be responsible for, however, they should be able to work with the assistance of professionals in their respective fields.

Remember that being appointed estate trustee can be a daunting task.  It can be quite a lot of work and you might be putting your potential estate trustee in a tough spot.  It is always best to ensure that the person you have in mind is comfortable being appointed, has the time to dedicate to such a task and does not feel that they have a conflict of interest.  Sometimes circumstances and family dynamics are such that a person may feel that they are not the right person for the role and it is best to have that information and respect it.  An honest discussion can be beneficial and will likely prevent a situation where the appointed trustee chooses not to act when the time comes.

Depending upon your situation, a professional trust company can also be a good option.   Trust companies will usually wish to review the draft Will, and it is normal for them to ask you to include specific clauses   to ensure they are able to act.  Your estate planning lawyer will be able to work with you to ensure that your Will reflects your wishes and contains the powers required by the trust company.

Bethany is an associate lawyer in the Wills and Estates department at Berry Gage LLP. 

You can contact Bethany with your estate planning questions at: banderson@bgfamilylaw.ca

 

“High Income” Families and Spousal Support

By Marian Gage

We should talk more about high income spousal support cases.

I’m not talking about the cases where a support payor earns an income just above the $350,000.00 “ceiling” set out in the Spousal Support Advisory Guidelines.  I’m talking about cases where a person with a spousal support obligation earns more than $1 million.

I’m really talking about cases where a support payor earns substantially more than $1 million.

Thanks to the Spousal Support Advisory Guidelines: The Revised Users Guide and the reported cases we know a few things:

  • The ranges set out in the Spousal Support Advisory Guidelines aren’t appropriate in these cases, although it’s worth doing the relevant calculations to see the numbers the SSAGs produce;

 

  • In most cases the spousal support payable in these cases is well below the SSAG ranges that would be calculated if the SSAGs were applied;

 

  • In some cases courts have applied the SSAG ranges;

 

  • As in all cases, but especially in high income cases where equalization payments will also (likely) be substantial, we need to take the recipient’s property settlement into account before calculating support; and

 

  • It’s all very unpredictable.

We are told that these cases are not common.  I practice in Oakville, where high incomes are not all that uncommon eitherI suspect a lot of families choose to keep their family matters out of the public, over-burdened court system whenever they can.  This means that the cases that will develop the precedents for these support issues are few and far between.

Is there a formula we can apply to high income cases?  The short answer is no.

The most recent high-profile-ish case on the matter was a Court of Appeal case reported last year when the Court calculated the half-way point between the payor’s three-year average income of just over $1,000,000.00 and the $350,000.00 “ceiling” in the SSAGs and used that number ($675,000.00 according to the Court of Appeal) as the income on which the payor’s support would be calculated under the SSAGs.

Is that the way we should calculate support in high-income cases?  Probably not.  We can’t just follow this model and treat it like a “formula” that will allow us to get back to the comfort and predictability of the SSAGs, simply applied to a reduced income.  That can’t be what we are supposed to do in all high-income cases, even if the result makes sense for the family in some cases.

We know we must take a fact-based, interests-based approach to these discussions when we are working with these families.  A Collaborative Process, or mediation with an Accredited Family Mediator, where an experienced financial professional can assist as a neutral, can go a long way in helping high income families determine the most suitable outcome, using what we know (see above) as a starting point.

Marian Gage is a Partner at Berry Gage LLP.  She is a Certified Specialist in Family Law and an Accredited Family Mediator (OAFM).

http://www.bgfamilylaw.ca

 

How Do I Choose My Estate Trustee (Executor)?

By Bethany Anderson

The person you select as an estate trustee (executor) will depend on a number of factors.  Spouses often appoint each other, but need to consider an alternate estate trustee for after both spouses have passed away, or in case the surviving spouse has become incapable.

There are some qualities that you should ensure the person you are appointing has, such as trustworthiness, organization, possibly negotiation skills, and at least a basic understanding of finances.  As you age, you should also consider the age of your alternate estate trustee and try to find someone younger than you, if possible.

It is best to appoint Estate Trustees who reside in Ontario, or within Canada.  Appointing a Trustee who resides in the United States, for instance, can carry with it a host of issues, such as cross border taxation concerns, the requirement to post a bond, and practical/logistical issues related to dealing with assets in Ontario.

The people you appoint need not be experts in all fields; a proper Will usually provides your Trustees with the power to hire the professionals he or she may require, such as accountants, lawyers, financial planners, etc., and to pay them their ordinary fees.

Your Estate Trustees are fiduciaries, and need to make decisions that they will be responsible for, however, they should be able to work with the assistance of professionals in their respective fields.

Depending upon your situation, a professional trust company can also be a good option.   Trust companies will usually wish to review the draft Will, and it is normal for them to ask you to include specific clauses   to ensure they are able to act.  Your estate planning lawyer will be able to work with you to ensure that your Will reflects your wishes and contains the powers required by the trust company.

bethany

Bethany is an associate lawyer in the Wills and Estates department at Berry Gage LLP. 

You can contact Bethany with your estate planning questions at: banderson@bgfamilylaw.ca

Early Neutral Process Planning

Separating can be overwhelming, especially in the initial phase.  It’s hard for separating spouses to know where to start (Lawyers?  Therapists?  Financial professionals?  Mediators?  All of the above?).

Choosing where to start – and how to start – is one of the most important decisions separating spouses must make.  It is the process that will guide the family through the difficult discussions and choices that follow.  Choosing the process that will work best for the family is paramount.

Early Neutral Process Planning (or “Early Neutral Consultation”) is a service that we provide for separating spouses (and/or their supportive friends and adult family members).  We help prepare a roadmap for the family so that they, together, can choose the most efficient, economical and respectful process.

In an Early Neutral Process Planning session we do not provide legal advice to participants (that would be a conflict of interest because both parties are present).  We do:

  • Walk clients through the separation process step by step;
  • Provide general information about the law;
  • Provide information about the different process options and professionals (including lawyers, financial professionals and family professionals) available – their roles, how to make the best use of their services, etc.;
  • Set out the disclosure that parties will need to make, regardless of their chosen process, and options for compiling that disclosure; and
  • If needed, provide referrals (we are not compensated for this by the professionals to whom we may refer clients).

If you or somebody you know might be interested in this service please do not hesitate to contact our Business Manager, Fiona Bryan, at 905-338-7941 ext. 230 or fbryan@bgfamilylaw.ca

http://www.bgfamilylaw.ca

Marian Gage is a Partner (a Collaborative Family Lawyer, a Certified Specialist in Family Law and an Accredited Family Mediator) at Berry Gage LLP.

“Do I Need a Will?” (and other questions for our Wills and Estates Lawyer)

People call us every day with questions about wills.  We thought it would be helpful to interview our Wills and Estates lawyer, Bethany Anderson, so that she can provide the answers to some of these questions.  Here are Bethany’s answers:

Do I need a Will?

“The most general (and obvious) two reasons to have a Will are that it allows you to a) decide who will be responsible for administering your estate (your “Estate Trustee”) and b) determine who will receive the assets of your estate and in what proportions/quantities.

A Will also allows you to create trusts for minor children, directing the age at which they will receive assets outright, and allowing for discretionary payments and/or milestone payments of income and capital along the way.

If you are providing for disabled beneficiaries, you can create a trust that will allow your beneficiary to maintain eligibility for government support payments and other ancillary benefits.

Basically, a properly drafted (and thought out) Will allows you to be flexible, and ensure your wishes are carried out.”

What happens if I die without a Will?

“In Ontario, if you do not have a Will, the Succession Law Reform Act (“SLRA”) governs what happens to your estate.  The intestacy provisions of the SLRA do not reflect everyone’s wishes, and many people are surprised when they learn how those SLRA provisions work.  For instance, a common assumption is that if a person is married (and has children) “everything will go to my spouse anyway.”  This may or may not be true, depending upon your circumstances, value of your assets the way your assets are held during your lifetime.    Under the SLRA, your surviving spouse (provided you are married) would receive the “preferential share” of your estate ($200,000.00), after which, he or she would share the remainder of your estate with your children.

If your children are minors (under 18 in Ontario), without a Will, there are no trust provisions established.  Minors are not entitled to receive assets outright, so often the Office of the Children’s Lawyer becomes involved.   Further, if you and your spouse are in a common law relationship and you have children together, your spouse does not automatically have the same property rights under the SLRA as they would if you were married, and unless a dependent’s support claim is possible, your children may be entitled to all of your estate.

The SLRA provides for distribution amongst next of kin – if you wish to make gifts to friends or charities, this won’t happen unless you have a Will creating these gifts.

Without a Will, you do not have a choice in who will act as your executor/estate trustee.  Someone will need to make an application to the Court for a Certificate of Appointment of Estate Trustee Without a Will.”

 My situation is very simple…Can’t I just get one of those less expensive Will Kits online?  Do I really need a fancy estate planning lawyer?

(We note Bethany has a lot to say about this!)

“Estate planning is a process, not just a document or a set of documents.  In many ways, you really do get what you pay for.  Everyone thinks of themselves as “simple” or “straightforward”, but if you are not aware of issues that might impact your estate, then you can’t consider them.

A lawyer who is well versed in estate planning will discuss your personal and financial circumstances with you.  They will talk to you about your goals, possible outcomes, contingencies, and how your plan may be impacted by the way you hold your assets.  They will be able to raise issues for you with respect to taxation (and may wish to work alongside your accountant in some cases), family law issues, etc.  They should be able to offer you options and advise you of risks that you may decide to accept or attempt to avoid.

The Will you prepare with an estate planning lawyer might appear “simple” or more complex, but it is very important to consider these issues as part of the process.  There is a lot more thought required for a proper Will (or estate plan) than just inserting names on a sheet of paper.

A Will kit is an inexpensive tool that allows you to prepare your own Will.  The price tag can be attractive, as can the simple availability online or in stationary stores. I am often asked “if I do a Will myself, will it be valid?”  That is not an easy question to answer.

With a Will kit, a person might end up with a Will that is technically valid (if it has been drafted and signed correctly) and that works for them. However, if it is not executed properly, it will not have met the technical requirements of a Will.   If it is “valid”, an even more important question is “does it do what you want it to do?”. If you have done it yourself, you have not received advice from a lawyer, and will probably not have considered various contingencies.

The language used in Will kits can be successful/correct or not – it really depends.  Many Will kits are missing clauses relating to things other than the distribution of assets.  When incorrect language is used, the person using the Will kit may not notice or understand the impact.  In some instances, the effect of using the wrong word (one common example, the use of  “children” instead of “issue” in an important context) the effect may be that the Will is interpreted in the exact opposite manner than the testator intended.

These are just some of the risks.  Wills from Will kits are also often lacking in provisions dealing with the powers of the estate trustees, compensation, and other “standard” Trustee provisions used by lawyers that are carefully crafted and included to prevent litigation and to ensure that Trustees have the toolkit they may need under the circumstances.  It can be a trade off: an initially low cost (the price of the kit) vs the risk of possible headaches and litigation costs (or wishes not being fulfilled) after your death.”

bethany

Bethany Anderson practices Wills and Estates law at Berry Gage LLP.  You can read more about her and contact her with your own questions by clicking this link: http://www.bgfamilylaw.ca/bio-ba.html