Canada: Daniel Estate (Re): A "‘Good News' Story"

One's choice of estate trustee, attorney for property and attorney for personal care is an important one. An estate trustee faces the responsibility of administering your estate in accordance with your Will(s) following your passing, thus being the one carrying out your wishes when you are no longer around to do so. An attorney for property named in a Continuing Power of Attorney for Property is generally given broad powersi to do anything with your property that you can do, except make or change your Will(s). An attorney for personal care is given the power to make personal care and treatment decisions for you when you are incapable of making them yourself. Given the responsibility faced by each person acting in any of these roles, an individual executing a Will, Continuing Power of Attorney for Property and/or Power of Attorney for Personal Care must give thought to who they name; and they must trust each such person's ability to carry out his or her responsibilities. Failure to give sufficient consideration to such appointments by a testatorii or grantoriii risks future litigation.

Recently in Daniel Estate (Re)iv, an application to pass accounts and seek compensation for acting as estate trustee and under Powers of Attorney for Property and Personal Care, demonstrated what can happen when the "right" choice is made.

The Applicants, Linda and Ted Austin, provided varying levels of assistance to Isabel and Wayne Daniel (high net worth, philanthropic individuals whose daughter had passed, with no next of kin and no one else to look after them) for well over 20 years without asking for or taking any compensation. Linda and Ted were the friends and former neighbours of Isabel and Wayne, but, as observed by Justice Di Luca, in many ways "acted like loyal and dutiful family members".v Not only did they assist with various chores and tasks, but also provided comfort and company. Both Isabel and Wayne suffered strokes in their later years. They were physically disabled and effectively confined to their home. With the help of Linda and Ted, Isabel and Wayne managed to continue living together and independently, until Isabel and Wayne decided to move into assisted living.vi

In 2011, Linda and Ted became Isabel and Wayne's attorneys for property and attorneys for personal care, and "managed Isabel and Wayne's financial affairs, tended to their personal needs and provided emotional support."vii Linda and Ted continued to be of assistance when Isabel and Wayne moved into assisted living and subsequently when Wayne needed to be moved to a home that could provide more intensive care. When Wayne passed away in 2017, Linda and Ted acted as estate trustees as Isabel was unable to do so.viii

Discussing the handling of Isabel and Wayne's finances, Justice Di Luca writes at paragraphs 17 to 19:

[17] In terms of finances, Linda and Ted assisted the couple with all of their day to day affairs. They acted conscientiously and scrupulously in this regard. This is confirmed by a detailed financial analysis prepared by a Chartered Professional Account and included in the application record. This analysis was commissioned by counsel for the Applicants in order to leave no stone unturned in demonstrating the care taken with the couple's finances.

[18] The accounting analysis is very helpful. It includes a source document review for a seven year period and includes a review of the Daniel's complicated investment portfolio. Every material expense is reviewed, a reconciliation of investments accounts is undertaken and amounts are cross-referenced to the couple's tax returns. The Austin's were required to provide explanations for any transaction over $1,000, all cash transactions and any recurring expenses.

[19] The accounting analysis reveals no issues in terms of Linda and Ted's handling of the couple's funds. Not only were the funds well handled, over the period of the Austin's stewardship the investment portfolio grew in value from $6.06 million to over $7.36 million.

In their application, Linda and Ted sought compensation with respect to acting in all three roles. They calculated the compensation for acting as estate trustee in accordance with the formula found in a Compensation Agreement that was created by RBC Trust and appended to Wayne's Will. Justice Di Luca found there was no apparent reason for Linda and Ted not to receive compensation calculated in this manner.ix

For acting as attorney for property, compensation was calculated using the formula set by Ontario Regulation 26/95 under the Substitute Decisions Act, 1992 (Ontario), applied to the years 2012 to 2018.x As part of Linda and Ted's application, it was pointed out that:

in estate matters, guideline percentages are used but the amounts determined under the guidelines are then assessed for reasonableness against an enumerated list of factors; see Laing Estate v. Hines, 1998 CanLII 6867 (ONCA) and Flaska Estate (Re), 1998 CanLII 5191 (ONCA). The factors assessed include; the size of the trust, the care and responsibility involved, the time occupied in performing the duties, the skill and ability shown, and the success resulting from the administration.xi

Justice Di Luca approved the manner in which compensation for acting as attorney for property was calculated, stating that:

While not necessary to do so, I also find that the factors set out in the estates case law support the reasonableness of the compensation sought. There is no issue that Linda and Ted provided great assistance in managing the financial affairs of Wayne and Isabel. The accounting analysis provided reveals that the financial affairs were handled meticulously and honestly. The large financial portfolio grew in value and was well managed. It would have taken considerable time and effort to manage the portfolio, even if Linda and Ted were not engaged in the actual investment decisions.xii

Finally, although there is no statutory framework for the compensation of services provided under a Power of Attorney for Personal Care, case law provides an opening for the claiming of compensation for acting as attorney for personal care. Justice Di Luca assessed the range of services provided by Linda and Ted over many years, and, after considering Isabel's and Wayne's financial means and the impact the services provided had in terms of Isabel's and Wayne's independence and dignity, found that the amount sought by Linda and Ted was reasonable and proportionate in the circumstances.xiii

This case demonstrates the work involved in acting under a Will, Continuing Power of Attorney for Property and Power of Attorney for Personal Care. Attorneys for property and personal care are tasked with providing various services that can have a large impact on the grantor of such documents' life.xiv An estate trustee, in carrying out the testator's wishes, impacts the lives of the beneficiaries, who are generally people who meant something to the deceased.

Overall, to quote Justice Di Luca, "[u]nlike many applications to pass accounts, this is a 'good news' story."xv Linda and Ted approached their roles as estate trustees, attorneys for property and attorneys for personal care with integrity and care. In doing so, they had a positive impact on the lives of Isabel and Wayne, earning the compensation that Isabel encouraged them to take.

Footnotes

i It is possible for these powers to be limited in the Continuing Power of Attorney for Property.

ii The "testator" being the person executing the Will.

iii The "grantor" being the person executing the Continuing Power of Attorney for Property or Power of Attorney for Personal Care, as the case may be.

iv 2019 ONSC 2790 [Daniel].

v Ibid at para 2. At paragraph 5 of Daniel, Justice Di Luca states that Isabel Daniel provided an affidavit through her long-time counsel in which she indicated that she felt the proposed compensation was reasonable "having regard to [Linda's and Ted's] ongoing commitment, time and devotion expended to ensure that the needs and wishes of [her] late husband and [herself] were attended to in the most compassionate and attentive manner."

vi Ibid at paras 3, 8-11, and 14.

vii Ibid at para 12.

viii Ibid at paras 12-16.

ix Ibid at paras 21 and 22.

x Ibid at para 23.

xi Ibid at para 24.

xii Ibid at para 25.

xiii Ibid at paras 26-29. The material provided by Linda and Ted in support of their application for compensation is noteworthy. Although they did not have explicit dockets of their time, they did provide affidavits detailing the services they provided during the relevant time period and were able to provide an estimate of the type and frequency of the services they provided. They also retained the services of a licensed paralegal, Certified Case Manager and Certified Canadian Life Care Planner employed in the personal injury field, who is engaged in preparing reports relating to cost of care issues and who was able to estimate the rough value of the services provided by Linda and Ted.

xiv It should be noted that Powers of Attorney for Personal Care take effect once the grantor of the attorney for personal care is no longer capable of making personal care and treatment decisions for herself or himself.

xv Ibid at para 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions