Most people should take the simple precaution in this very complex and hurried environment in which we live of having a Power of Attorney for Property. Failure to have such could result in a costly court application to have ones affairs managed. You do not want the Ontario Public Guardian and Trustee in your affairs. Any mentally capable person over 18 years of age may grant such power to a person over the age of 18 years. The Substitute Decisions Act mandates that the attorney appointed acts diligently with honesty, integrity and good faith. Compensation is payable to the attorney at rates specified in the Regulations to the Substitute Decisions Act unless prohibited in the Power of Attorney. A higher duty of care is imposed when compensation is payable. Your attorney cannot, however, make or change a will and sign it for you. Your property still belongs to you but it is managed by your attorney. A Power of Attorney for Property does not allow your attorney to make decisions concerning your personal care.
A Power of Attorney for Personal Care is sometimes referred to as a Living Will. It is a relatively new legal document statutorily provided for under the Substitute Decisions Act. You may now designate a substitute decision maker(s) to make decisions for you relative to your continuing medical, dietary, housing, clothing, safety, hygiene or health needs in the event of your incapacity. This Power of Attorney is not valid until the person granting the power is incapable of making his/her own decisions relative to personal care. In the Power of Attorney for Personal Care you may:
The substitute decision maker (attorney) should, but need not, follow your wishes as expressed in the Power of Attorney for Personal Care or, if the attorney thinks you might have changed your mind, such person can apply to the Consent and Capacity Board. To sign a Power of Attorney for Personal Care you must be at least 16 years of age and have the mental capacity to understand the nature of this grant. The best advice concerning such a document comes from an impartial professional. The person you appoint should be someone you know well, whom you trust completely with your personal decisions and be at least 16 years of age. You may not appoint someone who provides you with “health care or residential, social, training or support services for compensation” unless that person is your spouse, partner or relative. It is important to realize that the attorney appointed can only make decisions that you are unable to make. If you do not put in special instructions, your attorney then must make decisions according to what he or she believes to be in your best interest at the time. It is wise to appoint an alternate or back up person in case the primary designate, for any reason, cannot make a decision. You do not want to have to go back to the lawyer to prepare another document (and fee) when it can be dealt with easily in the first place. This document does not allow your attorney to make financial decisions concerning your property, except inferentially, by deciding on your care.
You have the right to revoke (cancel) either type of Power of Attorney at any time, as long as you are capable, but such revocation must be in writing with two witnesses present when you sign, the same as needed for a Power of Attorney. Such witnesses must sign with you present as well.
If you cannot easily locate a phone number for your insurance company, contact your insurance broker. They will put you in contact with the appropriate person to report your claim.Read Article
The investments a trustee can make are governed by sections 27-31 of the Trustee Act. The general rule pertaining to a Trustee’s power of investment is that a trust instrument can define the Trustee’s powers of investment. Trustees are bound by the instructions in the trust deed; the trust’s funds must be invested in strict accordance with the powers granted the trustee, regardless of what may be allowed by the Trustee Act. Should the trust instrument remain silent on investment powers, then, historically speaking, trusts were for the most part confined to judicial and later statutory lists of authorized investments.Read Article
The recent case of Clark v. Kwasney decided by Mr. Justice Reid here in Hamilton further emphasizes the difficulty of establishing “squatters’ rights”. Counsel (Bordin and Brisbin) were unable to convince their clients to settle and therefore the matter proceeded in an expeditious manner to a hearing. The result was a split decision. The fenced area was lost and the unfenced area remained as per the deeds.Read Article
The loss of the interdependent relationship can best be described as the loss of opportunity to form a permanent interdependent relationship with another individual whether that be through marriage or common law co-habitation. The main component to the loss of an interdependent relationship is the loss of financial benefits from shared family income.Read Article
In McIntyre v. Grigg et al (2006) 83 O.R. (3d), 161, the Court of Appeal, for the first time, considered the issue of whether punitive damages were available in the context of a motor vehicle accident claim. I had the privilege of arguing this appeal after my partner David Smye obtained a very favourable verdict from a Hamilton jury. While the majority in the Court of Appeal upheld the jury’s award for punitive damages, the quantum of the award was reduced substantially.Read Article
Particularly with the advent of no-fault insurance schemes, more and more people are finding themselves embroiled in litigation with their insurance companies. Whether an insured is bringing an action against their insurer for failing to pay accident benefits, disability benefits, life insurance benefits or property damage claims, a common allegation in any Statement of Claim is that the insurer breached its duty to act in good faith.Read Article