Why is it So Important to Have a Power of Attorney?

As we’ve discussed in a previous blog post, a power of attorney is a legal document that gives a person (the “attorney”) the power to take care of another person (the “donor’s”) financial and legal matters.

Let’s say you incur a traumatic brain injury as the result of a car accident, and you are rendered “mentally incapable”. What happens now to your financial affairs?

You have a Power of Attorney:

If you had already prepared a Power of Attorney while you had capacity, then the person to whom you had granted the Power of Attorney (the “attorney”) will now legally be able to take care of your financial and legal affairs. Instead of focusing time and energy on worrying about who would manage your affairs, your loved ones can direct more attention to your physical care.

You do not have a Power of Attorney:

But what if you do not have a Power of Attorney? No onehas the legal power to manage your affairs without already possessing a Power of Attorney or Court Order. Not even your spouse or child! So how would your loved ones make sure your financial and legal affairs are managed?

In this case, the Court will need to appoint a person or body (a “committee”) to manage your affairs. To start this process, your loved ones will need to prepare a number of documents, including:

an application to the Court for an order declaring your incapability
affidavits from two doctors proving your mental incapability
an “affidavit of kindred and fortune” that sets out particulars of your family and financial affairs

Only after considering your application and declaring you incapable will the judge then appoint a committee. As you can see, this could be a potentially complicated and lengthy process.
(For more details on Committeeship, click here)

If you want to ensure that a specific person of your choice makes financial and legal decisions for you in the case of your mental incapacity (and to avoid time consuming and expensive Court applications), the best way to do so is to have a Power of Attorney.
(To read more about granting a Power of Attorney, click here)

If you or a loved one is in need of advice regarding Powers of Attorney or Committeeship, consult Vancouver and Burnaby Incapacity Planning lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

So the Judge Ruled Against You…Now What?

Should you find yourself in a position where a judge has ruled against you and you wish to have that decision reviewed by a higher court then you must:

1. Take Immediate Steps to File the Necessary Appeal Documents

If you are seeking an appeal of a judge’s decision made at trial, you will have 30 days from the date of the judge’s decision to file with the court and effect service on the opposing party a document called a Notice of Appeal. The time limit is even shorter when appealing the interim decision of a master made in chambers. Accordingly, it is critical to seek the advice of experience legal counsel if you are displeased with a judge’s or master’s decision. Except in the rarest of cases, failure to comply with the time limits will mean that your right to appeal will be denied.

2. Understand the Appeal Process

The appeal from a judge’s decision does not afford you the opportunity to re-argue your entire case again in front of judges of a higher court but rather an appeal is an opportunity for you to convince a higher court to correct the error or errors the judge made when making the decision you are appealing from. To succeed at appeal, you must identify those errors and explain the nature and significance of these errors to the judges hearing the appeal.

It is also useful to remember that there are 2 sorts of errors that can be found in a trial judge’s decision. These errors are:

Errors of law: a mistake that is made by the court when it applies the law to the facts of your case. To establish an error of law, it is necessary to show that the judge was incorrect about a point of law and that the error made led to the decision that you wish to appeal from. As it is the primary job of an appellate court to correct a trial judge’s errors of law so that the law is being applied uniformly and correctly by all judges it is only necessary to show an error was made.
Errors of fact: a mistake that is made by the court when it misapprehends a fact and based upon that misapprehension the judge renders judgment. To be successful on an appeal based on an error of fact, it is necessary that you show the error is palpable and overriding. The reason for a relatively high threshold is that appeal judges are deferential to a trial judge’s findings of fact for the simple reason that the judge heard oral testimony from the witnesses and so is a better position to make findings of fact.

3. Be Prepared to Spend Money

While many appeals are heard in far less time than what a trial consumes, the filing fees, the ordering of transcripts of oral evidence given at trial, the amount of time your lawyer will spend researching the law and drafting written argument to submit to the appeal judges pointing out the errors made by the trial judge usually means an appeal will be at least $25,000 and if you lose you may be paying the responding side’s taxable legal costs.

4. Be Patient

While hearing dates for appeals are available on a much shorter time frame than those available for your trial, it will usually be at least 6 months from the date you filed your Notice of Appeal to the date of hearing and perhaps several months after the hearing date of your appeal until the appellate court will issue its decision.

Should you wish to have a judge’s decision reviewed call Vancouver & Burnaby Appeals Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

TENANCY IN COMMON v. JOINT TENANCY

When owing property in British Columbia with one or more other persons, you can own that property either by way of Joint Tenancy or Tenancy in Common with your other co-owners but what exactly does this mean?

1.What is Tenancy-In-Common?

Tenancy-In-Common is a form of co-ownership whereby each person owns an undivided share in the parcel of property. Co-owners can have equal or unequal percentage interests in the property but no individual may claim exclusive possession to any specific part of the property.

Under a Tenancy-In-Common, when one of the co-owners passes away, his or her share in the property does not pass to the other co-owners but rather that deceased person’s share will pass to his or her beneficiaries in accordance with his or her Will or in accordance with the laws governing the distribution of estates of individuals who die without a Will. Tenancy in Common is more often seen when the co-owners are owning the property for commercial purposes and are not related.

2. What is Joint Tenancy?

Joint Tenancy is another form of combined ownership but the unique thing about this form of ownership is that when a co-owner dies then his or her interest is absorbed by the surviving co-owners meaning that if 3 people own a property as joint tenants and 1 of these people dies then the surviving 2 people are the owners. This is called the right of survivorship. Due to this right of survivorship, a property owned under a Joint Tenancy would not form part of the deceased’s owner’s estate and so the terms of the deceased’s Will do not govern the distribution of the deceased’s interest . This type of holding of title is most common between spouses but such a decision ought not be made without considering what is to happen upon the death of a spouse. For example, spouses on their 2^nd marriage buying a home may wish to consider their children from a previous relationship ought to receive their interest in the home as opposed to their 2^nd spouse.

Accordingly, it is critical to understand the distinction between owing property as Joint Tenants versus Tenants in Common when determining what you wish to happen to your assets after you die, if you or a loved one is in need of advice regarding how you wish your estate to be distributed upon death, consult Vancouver & Burnaby Wills & Estate Planning lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

What is a Committeeship

A committeeship is what occurs when someone is appointed to protect the interests of a adult who is incapable of managing his or her affairs (the “Patient”) or self. The Patients Property Act of British Columbia (“the Act”) sets out a legal framework for the appointment of a committee and how the personal and financial affairs of the Patient is managed. A committeeship becomes necessary when a person did not grant a Power of Attorney when having the requisite mental capacity to do so.

For a person to be appointed Committee by the Court, it is necessary for the Court to make a finding that the Patient is:

a. incapable of managing their affairs;

b. incapable of managing their selves; or

c. incapable of managing both their affairs and their selves

by reason of infirmity, age, or disease.

Before the Court will make such a finding of incapacity, the person applying for committeeship will have to submit 2 medical opinions confirming the patient is mentally incapable of managing their affairs or selves or both. The Court process for applying for committeeship is a complicated and, if contested, protracted. It is not recommended that a person represent him or herself in an application to be appointed Committee of a Patient even if the Patient in question is a close family member.

Should a love one in your life lose mental capacity without having a valid Power of Attorney in place, call Vancouver & Burnaby Committee Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

COURT OF APPEAL SUCCESS!

Resolutions Law Corporation is proud to report Andrew Rebane’s recent victory at the Court of Appeal in which the Court of Appeal refused to disturb the Trial Judge’s finding of credibility against Plaintiffs who were trying to overturn the Trial Judge’s decision dismissing a claim against Andrew’s client. The trial lasted 27 days at the conclusion of which the Trial Judge dismissed the Plaintiffs’ claim on the basis that the evidence they gave as to threats being made to coerce a share transfer was simply not credible. For the full appeal decision, click on the following link: https://www.bccourts.ca/jdb-txt/ca/19/02/2019BCCA0227.htm

If you are seeking a Burnaby and Vancouver lawyer with experience doing Appeals in the Court of Appeal, call and consult Vancouver & Burnaby Appeals Lawyer at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

What is a Power of Attorney?

A power of attorney is a legal document that gives a person the power to take care of another person’s financial and legal matters. The person granting this power is called the “donor” while the person to whom the power is given is called the “attorney,”

A power of attorney gives the person appointed as attorney the authority to take care of financial and legal affairs. This could include routine matter such as paying bills and more complicated financial decisions such as choice of investment portfolio, tax planning or selling real estate on your behalf. A Power of Attorney does not give Attorney the right to to make decisions about the donor’s personal or health care.

What are Powers of Attorney Used For?

In the days before modern communications such as phone and internet, individuals who went away for extended periods of time would grant a power of attorney to a trusted individual to make financial and legal decisions in their absence.

Today, a Power of Attorney is most commonly used as a form of advance planning, to ensure that a family member or other person of the donor’s choice is legally able to take care of their financial affairs if the donor become “mentally incapable” of managing their own finances in the future. Such a Power of Attorney is often called an “enduring” Power of Attorney as it remains in effect – or “endures” – even if you become mentally incapable.

When considering whether or not to grant a Power of Attorney, it is important to know that mental incapacity will prevent a donor from granting a Power of Attorney. The Power of Attorney Act states that if a donor cannot understand all of the following:

(a)the property the donor has and its approximate value;

(b)the obligations the donor owes to his or her dependants;

(c)that the donor’s attorney will be able to do on the donor’s behalf anything in respect of the donor’s financial affairs that the donor could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;

(d)that, unless the attorney manages the adult’s business and property prudently, their value may decline;

(e)that the attorney might misuse the attorney’s authority;

(f)that the donor may, if capable, revoke the enduring power of attorney;

then the donor is incapable of granting a Power of Attorney.

If a donor does not have a legal Power of Attorney appointing someone to act for him/her in place when he/she becomes mentally incapable, then the donor’s loved ones will need to go to court to get “committeeship” (the legal authority to handle the donor’s affairs) which is invariably an expensive and time consuming process.

If you or a loved one is in need of advice regarding Powers of Attorney or Committeeship, consult Vancouver & Burnaby Incapacity Planning lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

WHAT DO YOU MEAN I HAVE TO PAY CHILD SUPPORT…THE CHILD ISN’T EVEN MINE….

Even though that child living with you is not even your biological child, you may be liable to pay child support for a child of your spouse.

In the case of married couples, the Divorce Act imposes a clear obligation on spouses to financially support any “children of the marriage” which include “any child for whom they both stand in the place of parents” as well as “any child of whom one is the parent and for whom the other stands in the place of a parent.” In other words, liability for child support under the Divorce Act arises where you or your spouse assumed a parenting role for the child in question. The courts look at the following factors when determining if a parent/child relationship has been established between spouse and step-child:

the step-parent’s intent to treat the child as a member of his or her family;
the extent of the child’s participation in the newly-formed family;
the nature and extent of any discipline imposed by the step-parent;
whether the step-parent holds out to the child, family and others that he or she has responsibility toward the child;
the nature of the child’s relationship with the step-parent;
whether the child refers to the step-parent as “dad” or “mom” (as the case may be); and
the extent to which the original biological parent (i.e the one “replaced” by the step-parent) has an ongoing personal and financial relationship to the child.

In the case of common law couples, liability for child support arises under the Family Law Act of British Columbia where a spouse has contributed towards the support of a stepchild for a minimum period of one year although a step-parent’s liability to support a child is secondary to that of the child’s biological parent. In determining, liability for child support with respect to a step-child, the courts will look at the following factors:The length of the relationship;

The length of the relationship;
The family’s spending habits;
- Who paid the household expenses;
- The step-parent’s direct and indirect contributions to the child.

Contributions as minor as including a step-child on an employee benefits’ program through work may attract liability to pay child support for a step-child under the Family Law Act of British Columbia.

To determine your liability to pay or your entitlement to claim for a child in a blended family situation is often not clear and only a lawyer familiar in family law principles can provide you with the advice you need.

If you are being asked to pay child support for a step-child or wish to claim child support from a spouse who is not the biological parent of your child, consult Vancouver & Burnaby Family Law and Child Support lawyer/attorney Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

WHAT DO YOU MEAN MY CHILD DOESN’T WANT TO SPEND TIME WITH ME?

APXPDB Angry Argue Mother Parent Shouting Son Teenager

When determining the amount of time that parents may exercise parenting time with their children, the Courts of British Columbia will always look only to the best interests of the children. Usually, in the absence of a court order or written agreement, the biological parents of the children are joint guardians of the children and are entitled to exercise parenting time with the children provided it is in the best of the children.

When determining whether a parent exercising parenting time is in the best interests of the children, the Courts of British Columbia will consider the views of the children unless inappropriate to do so. But what does this practically mean?

For children under the age of 6, the courts will give literally no weight to the views of a child as to how much parenting time he or she should spend with each parent and under what conditions. When a child is between 7 to 11 or 12, the courts will actually consider the child’s views but it is unlikely that such views will be determinative on the court’s decision as to parenting time. However, when the child is over the age of 12 and under the age 15, the courts will seriously consider the child’s views unless there is evidence of the child being alienated from one parent by the other parent. When the child is over the age of 15, even where there is evidence of alienation, the courts will often be hesitant to make an order in contravention of a child’s stated wishes without being convinced that a framework has been put into place for re-unification of the alienated parent and child. The courts view 16 as being an age where teens must be given a “significant measure of autonomy” as to whether a court ought to order a teen to spend time with a parent.

If you are being denied parenting time with your children, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

HOW LONG IS CHILD SUPPORT PAYABLE?

As discussed in a previous post, child support is an ongoing periodic payment made by you or received by you for the financial benefit of your child.

To answer the question for how long child support is payable in your particular case – you must first determine if the child support is payable under the Divorce Act or the Family Law Act. If you and the other parent of the child were never married, then the child support is payable under the Family Law Act. In a situation where you and the other parent were legally married, then in all likelihood the child support is payable under the Divorce Act but it is always a good idea to have an experienced family lawyer review your court order or separation agreement.

Divorce Act

Under the Divorce Act, child support orders may be made with respect to a child or children of two spouses or former spouses who, at the material time, is under the age of majority and who has not withdrawn from their charge, or is the age of majority and under their charge but unable by reason of illness, disability or other cause to withdraw from their charge or to obtain the necessaries of life.

What this means in non-legalese language is that in British Columbia, child support is payable with respect to children of married or divorced couples until the age of 19 and child support can continue to be payable after a child’s 19^th birthday in the case of physical or mental health issues. The words “other cause” do include those situations where a child attends post secondary schooling or training.

Family Law Act

Under the Family Law Act, child support orders may be made with respect to a child of parents who is under 19 or a child who is 19 or older and unable because of illness, disability or another reason to obtain the necessaries of life or withdraw from the charge of his or her parents.

What this again means in non-legalese language is that in British Columbia, child support is payable with respect to children of common law couples or even those where the parents did not ever live together until the age of 19 and child support can continue to be payable after a child’s 19^th birthday in the case of physical or mental health issues. The words “another reason” do include those situations where a child attends post secondary schooling or training.

The definitions as set out in both the Divorce Act and the Family Law Act have been interpreted by the Courts of British Columbia and the issue of whether child support continues to be payable in the case of a child who is over 19 is very fact specific and it is recommended that you review your situation with a qualified family lawyer to determine your rights and obligations with respect to child support.

If you are being asked to pay or are seeking to claim child support for a child of yours whom is over 19 years of age, consult Vancouver & Burnaby Family Law and Child Support lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107

BENEFICIARIES WHO ARE DISABLED OR STRUGGLING WITH ADDICTION ISSUES…

present unique challenges for those making Wills. Typically, will-makers provide outright gifts to beneficiaries except where the beneficiaries are under age in which case the will-maker creates a trust in the Will directing the executor/trustee to hold the gift (usually liquid investments) in trust for the under-aged beneficiary under that under-aged beneficiary reaches a certain age with the executor/trustee having the right to access the investment for the purposes of providing for the care, maintenance, education and benefit of that under-aged beneficiary.

However, what ought a will-maker do if the intended beneficiary is struggling with addiction or longstanding mental illness issues. In such cases, a lump sum gift received at any age may be squandered by such a beneficiary or the beneficiary may become a target of unscrupulous individuals. Another consideration is that some beneficiaries may be in receipt of both Provincial and Federal disability benefits and a lump sum inheritance may compromise the ongoing receipt of such benefits.

A trust known as a Henson trust set up in a will addresses both the concerns of a beneficiary squandering a lump sum inheritance or having such an inheritance negatively impact that beneficiary’s disability payments. It is highly recommended that a will-maker seek out a lawyer familiar with Henson trusts when considering whether to include a Henson Trust in his or her will for a certain beneficiary.

An additional consideration when considering the needs of a disabled beneficiary is who will manage the trust for the disabled beneficiary. All too often, there is conflict between the trustee and the disabled beneficiary and the trustee can be worn down by the continual demands of a beneficiary struggling with mental illness or addiction issues. In such cases, it is advisable that a professional trust company be appointed to administer the trust. Sometimes, will-makers will appoint both a trust company and a family member to manage a trust for a disabled beneficiary.

In either case, it’s often inappropriate to ask a family member or sibling to take on the responsibility of managing a trust for a child with mental illness or addiction issues whether or not that child accepts his illness and is working towards health and recovery, or is still active in his illness or addiction. It’s often best for both the child as well as any siblings, to appoint an independent third party, such as a professional Trust Company, to take on the role of managing the trust.

If you or a loved one has a spouse or child struggling with mental illness or addiction and wishes to make or update a will, consult Vancouver/Burnaby wills & estates lawyer Andrew Rebane at Resolutions Law Corporation, located near East Vancouver and in Burnaby, British Columbia, Email: andrew@resolutionslawcorp.com or 778-372