Divorce has no effect on an existing Power of Attorney document in which you appointed a former spouse as your substitute decision-maker.  You must revoke the existing Power of Attorney in writing or sign new documents which appoint someone else (and, at the same time, revoke the previous documents) if you do not wish a former spouse to act under an existing Power of Attorney.  It is also necessary to notify any institutions, financial planners, and other professionals that you have revoked or signed a new Power of Attorney document.

Re-marriage generally has no effect on an existing Power of Attorney document in which you appointed a former spouse (married or common law) as your substitute decision-maker.  If you do not wish a former spouse to act under an existing Power of Attorney, revoke the document in writing or sign new documents which appoint someone else and, at the same time, revoke the previous documents.  You must also notify any institutions, financial planners, and other professionals that you have revoked or signed a new Power of Attorney document.

Unfortunately, guardianship applications can become acrimonious where more than one family member vie to be guardian. What is the court’s reaction when the contesting parties are able to come to an agreement and appear to have settled the differences between them? A recent Ontario case, Bosch v. Bosch, illustrates the court’s position that although the parties may appear to have overcome their differences and agreed to a settlement, what remains paramount are the best interests of the incapable person.

The case involved guardianship applications brought by a son. His father had been in a nursing home for some years and the incapable’s wife (mother of the son) had been acting as his guardian of property and attorney for personal care. Initially the son brought an application seeking a court order finding his mother incapable and appointing him as her guardian of property and of the person.  In a second application, the son wanted his mother removed as guardian of property and of the person of his father.  The son wanted to be appointed in his mother’s place.

During mediation, mother and son (along with a sister) were able to reach a settlement, pending court approval. The family members had agreed that the first application would be dismissed and mother and son would be appointed joint guardians of property and person for the incapable. The judge, however, refused to approve the settlement as he was not satisfied that the proposed guardians had truly settled their differences.  The judge commented, “Absent clear evidence of the unalterable willingness of two disputing persons to put their personal differences to one side and to act together only with a view to the best interest of an incapable person, joint guardianship can become a minefield with the incapable person the loser.”   This decision makes it clear that the court requires some tangible proof that the proposed guardians can truly get along before taking on the responsibilities of guardianship.  Exactly what will satisfy the court remains to be seen.

Gifting a Pet to a Caregiver

Although most of us do not think of our pets as assets, it is important to remember that, for legal purposes, animals are considered personal property. As such, a pet cannot be a beneficiary under a Will. A pet owner can gift his or her pet to another person who then becomes the legal owner of the pet. A provision in a Will directing that a pet be euthanized will likely not be valid as such provisions are considered to be against public policy.

Many pet owners choose to simply leave a pet to a person named in the Will under the assumption that that person will take care of the pet for its remaining lifetime.  The selection of this person is an important decision.  A pet owner should consider if this person would have:

• the ability to provide a loving and stable home;
• the willingness to assume the responsibilities that come with caring for a pet;
• an amicable relationship between the pet and the caregiver’s family members;
• a lifestyle that is conducive to the care of the specific pet.

Before naming a person in a Will who is expected to become the caregiver, the pet owner should ask the proposed caregiver if he or she is willing to take on the responsibility. An alternate caregiver should also be named in case the first named person is unable or unwilling to take the pet. If the pet owner feels that the pet would be traumatized by the pet owner’s death and that euthanization would therefore be the best course of action, he or she should discuss this with the caregiver and prepare a letter of wishes.

Gift of Cash to Caregiver

Many pet owners also choose to provide a financial gift in a Will to the caregiver as a show of appreciation and as a an initial contribution towards the care of the pet. The gift may cover the expenses relating to the care of the pet, such as food and veterinary bills, and/or compensation and out-of-pocket expenses for the caregiver. A gift for the care of a specific pet is not considered to be a charitable gift.

The gift may be an outright cash gift to the caregiver with instructions that it be used for the care of a pet. However, it is important to note that such a gift is not legally enforceable; in other words, the caregiver can abandon the pet and keep the cash. Such a gift, however, may be entirely appropriate in certain situations. For example, where the chosen caregiver is very trustworthy, the amount of money left to care for the pet is relatively small, and/or where it is highly unlikely that the pet will outlive both the owner and the caregiver.

It is possible to provide a cash gift to a caregiver which is conditional on the caregiver providing appropriate care for the pet. However, such conditional gifts raise numerous practical problems. Firstly, such a gift requires the executor to monitor the caregiver’s behaviour. Secondly, it is unlikely that such a condition would be enforced after the estate has been wound up.  Thirdly, the other beneficiaries of the Will who would benefit if the conditional gift were to fail may be encouraged to bring a legal challenge in order to collect.  Practically speaking, it may be best to leave a gift to a caregiver setting out the pet owner’s wishes that the gift be used for the care of the pet to impose a moral, although not legal, obligation.  Such a letter of wishes would not be included in the Will but would be provided to the caregiver separately either in advance of the pet owner’s death or at the time that the pet is delivered to the caregiver. 

As pets are most often beloved family members, it is important to consider them when doing your estate planning. Curious about the real ‘Daisy’ that inspired these blogs? Meet her at http://nefflawoffice.com/about_Daisy.html.

Immediate Care after Incapacity/Death

Every pet owner should ask a trusted friend or family member to be the emergency contact to feed and care for a pet in the event of the owner’s sudden incapacity or death. It is a good idea to carry a wallet card with information such as the pet’s name and address, the contact information for the emergency contact person, the pet’s feeding schedule and medical history, and any other relevant information. This information should also be given to the emergency contact person.  Consider how the emergency contact person will gain access to your home if that is where the pet is most likely to be.

Planning for Incapacity – A Power of Attorney for Property

It is also important to plan for the care of a pet in the event of incapacity. A Power of Attorney for Property is a document which allows a person (a Grantor) to appoint another person (an Attorney) to act on the Grantor’s behalf when they are not in a position to deal with their property and financial affairs. As animals are legally classified as property, a pet owner can include a provision directing an Attorney to undertake the care of a pet and expend any reasonable amounts necessary to provide that care. Custom drafting can allow the specific needs of a pet to be addressed.

Next week’s blog will explore gifting a pet to a caregiver and some things to consider when making a cash gift to a caregiver.

Answer: In short, probably not. It is likely that such a provision would not be legally binding upon your executor.  It is generally held that executors should be able to select professional advisors of their own choosing. This does make practical sense as the professional named in the Will could have died, relocated, or retired. It could be drafted as a ‘wish’ or you could write a separate memorandum indicating your wishes. Neither of these options will be legally binding but they may have some moral persuasion.

A POA PC allows the person(s) you have named to make medical treatment and personal care decisions for you but only if you are mentally incapable of making the decision yourself. There are different tests for mental capacity depending upon the decisions that must be made:

 ·         If your PC attorney has reason to believe that you are incapable of making personal care decisions to which the Health Care Consent Act (HCCA) does not apply (decisions concerning your shelter, clothing, hygiene and safety), the attorney may make the decision for you unless your document specifies that you must first be proven to be legally incapable;  

·         If the HCCA applies to the decision (generally any medical treatment decision), you must be incapable of making the decision before the attorney will be able to decide for you.

 Sensationalized, sometimes tragic, cases have made the concept of a ‘living will’ familiar. In Ontario,  a ‘living will’ is generally used to give specific instructions as to what medical treatment you want or do not want, for example, whether you want CPR measures or not and under what conditions.  Such decisions may need to be made if you are terminally ill with no reasonable hope of recovery.  A living will may be included in your POA PC or it may be a separate document.  A ‘do not resuscitate’ request is a type of living will. 

When deciding who to name in your POA PC, consider someone who shares your moral, ethical or religious views and who you are sure will be willing and able to make the decision you would have made no matter how difficult and regardless of anyone else’s objections.  Consider talking about it ahead of time to ensure your wishes are well known.

You can name one or more people or a trust company to act on your behalf.  With the document in hand, they can deal with your property and financial affairs.  Depending upon the wording of the POA PPY document, it may used when you are unable to manage your financial affairs due to mental incapacity or it may be drafted to allow its use even if you are mentally fine but physically unable to be present perhaps due to an injury that does not affect your mental  health or being away on a trip.  Once properly signed, a POA PPY remains effective while you are alive or until you revoke (cancel) it in writing.  Unless the document includes a condition that requires you to be mentally incapable before it is effective,  a POA PPY can be used as soon as it is signed.  If a POA PPY is ‘continuing’, it will continue to be effective even if you later become mentally incapable.

When considering who to name as your POA PPY, look for someone who is organized, trustworthy, conscientious, and financially astute.  Many people choose a trusted family member or friend while others choose their lawyer or a trust company as the attorney for property.

However, in some circumstances a government-issued Death Certificate may be required.  For a death to be registered, the local municipal clerk’s office requires both the Medical Certificate of Death (issued by a physician or coroner) and a Statement of Death completed by the Funeral Director usually based on information provided by the family.

Once a death has been registered, anyone can apply for an uncertified Death Certificate.  However, only the deceased’s next of kin, extended next of kin or an authorized representative may apply for a certified copy  of a Statement of Death.  To apply to the Registrar General for the Province of Ontario for either of these documents, the following information is required:  

• the deceased’s first and last name;
• gender;
• date of death;
• city or town where the death occurred;
• information about the deceased’s parents; and,
• information about the deceased’s spouse or partner (if applicable).

The deceased’s next of kin includes parents, spouse or common-law partner, children, and siblings. If all of the deceased’s next of kin are no longer living, extended next of kin of the deceased may apply. Extended next of kin include aunts, uncles, first cousins, grandchildren, grandparents, nephews and nieces. For more information and to apply for a government-issued death certificate, check  http://www.ontario.ca/en/life_events/death/STEL02_119203