Feb

Buyer Beware! Review of DIY Power of Attorney Kits…

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It’s Buyer Beware when trying to make your own Power of Attorney!

Full Disclosure: I’m a Toronto lawyer. I’m also the founder / president of Dynamic Legal Forms Ltd., which offers the Power of Attorney Wizard. The Power of Attorney Wizard allows individual to create their own custom-tailored power of attorney for property / finances (available for 7 Canadian provinces) or power of attorney for personal care (currently available for Ontario). This goes hand in hand with our proprietary Will-O-Matic system. The Will-O-Matic is also available in Australia and the UK.

Now, I’m not here to tell you about the Power of Attorney Wizard and what makes it so great. No, I’m here to tell you what’s wrong with other do-it-yourself Power of Attorney Kits. These Power of Attorney kits are becoming quite popular these days. You can find them in Staples or Amazon.ca, online (just do a Google Search), and even on Group buying websites like Groupon. But are they any good? Well, the truth is: not necessarily…

Lets review some of the deficiencies I found with these products, shall we?

No Distinction

A power of attorney is not the same thing as a “personal directive” (Alberta), “representation agreement” (British Columbia), “health care directive” (Manitoba), “living will” (New Brunswick), or “personal mandate” (Quebec”). But I’ve found MOST do-it-yourself Power of Attorney kits call the document that they are offering a “Power of Attorney” or “Enduring Power of Attorney” or “Continuing Power of Attorney”. So why are they wrong?

Well, in most Canadian provinces, a document that allows you to name someone to make decisions about your property / finances when you are unable to do so (or out of the country, or unavailable, etc.) is called a “Power of Attorney for Property / Finances“. The word “Enduring” in many provinces or “Continuing” in Ontario that appears in front of the word “Power of Attorney for Property / Finances” mean that the Power of Attorney takes effect or continues to stay in effect after you have lost your mental capacity. And powers of attorney for property / finances FOR THE MOST PART are very similar from one province to the next. Sure there are some nuances (e.g. in B.C. and Manitoba which have specific witness requirements), but the laws governing these documents are very similar. Are you with me so far?

Now, in some provinces, there is another document that you can create called a “Power of Attorney for Personal Care“. This allows you to name someone to make personal care decisions on your behalf when you are unable to do so. That’s the case in Ontario, for example. And this is where things get confusing. Many provinces (not Ontario though) have introduced laws that allow you to name someone to make personal care decisions – including final wishes concerning your medical treatment - when you are no longer able to communicate and have lost your mental capacity. These laws differ from one province to the next. These documents may be called “personal directives”, “living wills”, “health care directives”, “advance health care directives”, “representation agreements”, “powers of attorney for personal care”, or “personal mandates”. Importantly, these documents have specific requirements that must be met to be valid in their respective province.

So here’s the real shocker: when I take a look at so-called “Powers of Attorney” for “Canada”, it’s a one-size fits all solution. There’s NO DISTINCTION from one provinces to the next. The nuances of provincial laws are ignored or disregarded. And this simply won’t do!

Let’s take a look at a simple situation, shall we? In British Columbia, if you want to create a Power of Attorney or Enduring Power of Attorney to deal with an interest in land, then, pursuant to the Land Title Act, R.S.B.C. 1996, c 25, a lawyer or Notary Public in the province of British Columbia is required to act as your witness. If your Enduring Power of Attorney does not deal with an interest in land, you are not required to have a lawyer involved in preparing, signing, notarizing, etc. your Enduring Power of Attorney for it to be valid. OK, so guess how many do-it-yourself Power of Attorney kits I’ve seen that includes this information to help you ensure that your Power of Attorney can legally deal with an interest in land? You guessed it: none. This is frankly quite scary (as it puts you and your loved ones in a difficult situation if someone tried acting upon your Power of Attorney to deal with an interest in land)!

And here’s yet another example. Did you know, for example, that for your Power of Attorney for Property / Finances to be valid in Manitoba, it must be signed in the presence of a witness who is:

an individual registered or qualified to be registered under section 3 of The Marriage Act to solemnize marriages;
a judge of a superior court of the province;
a justice of the peace or provincial judge;
a duly qualified medical practitioner;
a notary public appointed for the province;
a lawyer entitled to practice in the province;
a member of the Royal Canadian Mounted Police; or
a police officer with a police service established or continued under The Police Services Act.

Yet how many Power of Attorney Kits tell you this? You guessed it…

No Disclaimers

I’ve mentioned this before when critiquing other do-it-yourself Will Kits. And it’s the same problem with do-it-yourself Power of Attorney kits: there are no warnings as to who should be using their product. But do-it-yourself Power of Attorney Kits should generally NOT be used by those who lack mental capacity (e.g. they do not understand the nature and effect of making a Power of Attorney, etc.) or who are being unduly pressured by others. With respect to powers of attorney for property / finances, the person giving this document must be able to appreciate the nature of their property and approximate value, as well as the financial obligations they owe to dependents. If there’s something amiss with the person making the power of attorney, it may be challenged and rendered invalid by the court. Nonetheless, it’s rare to see these types of warnings on websites and Power of Attorney Kits! Why not? Because I’m sure they don’t want to scare you away, that’s why!

Limited Choices

When you’re filling out a Power of Attorney (either manually or through Microsoft word or even online), some options are too rigid, too simplistic, or outright missing (e.g. substitute attorneys, specific instructions which you expect to be followed, limitations on the attorney’s powers, not revoking other powers of attorney, when the power of attorney takes effect, the naming of a person or person(s) who will make a written declaration as to when you’ve become mentally incompetent, the naming of a person or person(s) who you want to be notified in the event that you are declared to be mentally incompetent, etc.).

How can you truly express your wishes if your options are limited? You’re basically leaving it up to the creator of the Power of Attorney kit to tell you what options you have, but I’ve seen those options and they’re often problematic (again, either too limited or non existent)! Was the person who created the Power of Attorney kit a lawyer familiar with drafting Powers of Attorneys and Provincial Power of Attorney laws? Did they research all the different options available to you? And are they constantly improving their product by making updates – particularly when the laws change?

No Education

There’s limited education or warnings in many Power of Attorney kits I’ve reviewed. But you need to know about things like who appropriate witnesses are, how you are supposed to sign the power of attorney in the presence of a witness or witnesses, when the power of attorney takes effect and when it terminates, what happens if you don’t have a power of attorney, and so on. Powers of Attorney are very complex and trying to create one without enough education to make an informed decision may jeopardize your wishes or the validity of the Power of Attorney itself!

Not based on Provincial Power of Attorney laws

Many Power of Attorney kits don’t take into consideration the nuances of provincial Power of Attorney laws (which may cause confusion). Powers of Attorney are based on provincial laws. So if you lived and had property in Ontario, how you feel about a Power of Attorney that originated from a California that was prepared by a Florida lawyer?

Poorly Drafted

Can a non-lawyer actually understand the difference between a properly worded and drafted Power of Attorney versus an improper one? I don’t think it’s easy for them unless they have formal legal training and understand what they should be looking for. This makes it even harder for the general public to know if the product they are purchasing and using is any good. Take it from me (a Canadian lawyer who has studied Power of Attorney laws throughout Canada): I’ve seen some very poorly drafted Powers of Attorney out there (incomplete, poorly structured and drafted, archaic, etc.). Poorly drafted Powers of Attorney may lead to their being challenged and rendered invalid.

Invalid

There are lots of way in which your Power of Attorney can be rendered invalid (e.g. inappropriate witnesses, undue pressure, etc.). And again, a little education helps prevent against this.

Conclusion

Be sure to do your diligence before attempting to use a do-it-yourself Power of Attorney Kit. They are plagued with problems, may not be appropriate for you, and may cause more harm than good. It’s buyer beware! And the worst part is: you may be unavailable (i.e. mentally incapacitated) to deal with these problems, while your family and friends try to deal with the mess you left them!

written by pmmpa

Feb

“Botch it Yourself”… I mean “Do it Yourself Will Kits”…

Wills and Estates

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It’s Buyer Beware when trying to make your own Will!

Full Disclosure: I’m a Toronto lawyer. I’m also the founder / president of Dynamic Legal Forms Ltd., which sells the most do-it-yourself Wills in Canada through our proprietary Will-O-Matic system. The Will-O-Matic is also available in Australia and the UK. Now, I’m not here to tell you about the Will-O-Matic system and what makes it so great. No, I’m here to tell you what’s wrong with other do-it-yourself Will Kits. These Will kits are becoming quite popular these days. You can find them in Staples or Amazon.ca, online (just do a Google Search), and even on Group buying websites like Groupon. But are they any good? Well, the truth is: not necessarily…

Personally, I find it shocking that those without sufficient knowledge – including lawyers and non-lawyers who prepare Wills for a living – are offering Will writing products or services. These kits may be doing more harm than good. Case in point, there are lots of ways in which these “do it yourself” Will kits can be invalid – even if you think they are valid! This means that, if they are invalid, when you die, there may be a court action to determine how your assets should be distributed – and this may not be in accordance with your wishes or in the most tax-advantageous manner. Some of these ways are discussed in greater detail at the end of this post…

So let’s get into some of the deficiencies I see with many Will kits in the marketplace, shall we?

No Disclaimers

There are no warnings as to who should be using their product. But do-it-yourself Will Kits should generally NOT be used by those who lack mental capacity (e.g. they do not understand the nature and effect of making a Will, etc.), are being unduly pressured by others, who have complex estates, who have international property, who have blended families, who believe there may be infighting amongst loved ones when you die, etc. In these circumstances, you should not be using a do-it-yourself Will kit because the Will can be challenged on these grounds. But it’s rare to see these types of warnings on websites and Will Kits! Why not? Because I’m sure the business don’t want to scare you away, that’s why!

Limited Choices

When you’re filling out the Will (either manually or through Microsoft word or even online), some options are too rigid, too simplistic, or outright missing (e.g. specific types of gifts that can be made, compensation for the executor and trustee, gifts to the executor and trustee, debt forgiveness, alternative dispute resolution, additional clauses, definitions, etc.). How can you truly express your wishes if your options are limited? You’re basically leaving it up to the creator of the Will kit to tell you what options you have, but I’ve seen those options and they’re often problematic (again, either too limited or non existent)! Was the person who created the Will kit a lawyer familiar with drafting Wills and Provincial Wills laws? Did they research all the different options available to you? And are they constantly improving their product by making updates – particularly when the laws change?

No Education

There’s no education or warnings – for example, of who can be an appropriate witness (generally, gifts to beneficiaries or their spouses are void if they also act as a witness), what happens if your selected beneficiary predeceases you, or what types of things you cannot do in your Will (e.g. you cannot gift an interest in real estate which is owned by you jointly with someone else because of the right of survivorship; if you do so, that gift will fail and the disappointed beneficiary may have grounds to sue), or how to execute the Will properly to make sure it is valid. Wills are very complex and trying to create one without enough education to make an informed decision may jeopardize your wishes or the validity of the Will itself!

Not based on Provincial Wills laws

Many Will kits don’t take into consideration the nuances of provincial Wills laws (which may cause confusion). Wills are based on provincial laws. So if you lived and had property in Ontario, how you feel about a Will kit that originated from a California that was prepared by a Florida lawyer? I’ve personally seen Canadian companies call the person that is responsible for taking care of your minor children called a “Guardian” in EVERY SINGLE PROVINCE! But that’s wrong! They’re called a “Tutor” in Quebec and a “Custodian of minor Children and Guardian of their property” in Ontario.

Poorly Drafted

Can a non-lawyer actually understand the difference between a properly worded and drafted Will versus an improper one? I don’t think it’s easy for them unless they have formal legal training and understand what they should be looking for. This makes it even harder for the general public to know if the product they are purchasing and using is any good. Take it from me (a Canadian lawyer who has studied Wills laws in Canada, Australia and the UK): I’ve seen some very poorly drafted Wills out there (incomplete, poorly structured and drafted, archaic, etc.). Poorly drafted Wills may lead to their being challenged and rendered invalid.

Invalid

There are lots of way in which your Will can be invalid. And again, a little education helps prevent against this. For starters, if you don’t have sufficient mental capacity at the time of making a Will, then it is invalid. Your Will – or part of it – is also invalid if you included something (e.g. a gift to someone) as a result of fraud or pressure or mistake. If you write your Will and then get married, your Will is automatically revoked. That is, unless your Will is made in contemplation of your marriage to that specific person. If you sign your Will without two (2) witnesses, then your Will is invalid. And if your witnesses are also beneficiaries (i.e. persons you give gifts to in the Will) or the spouses of beneficiaries, then gifts to them will be void. Any change made to your Will after it has executed (i.e. signed and witnessed) is invalid unless it is executed in the same manner as the Will. If you lose your Will, then when you die you will be presumed to have revoked it! Finally, if you give a gift of real or personal property to someone in your Will but don’t own that property at the time of your death, then that person generally won’t receive anything! Now how many Will Kits are out there that adequately educate you along the way and afterwards to help you ensure that you don’t invalidate your Will? You guessed it: not many!

Conclusion

Be sure to do your diligence before attempting to use a do-it-yourself Will-Kit. They are plagued with problems, may not be appropriate for you, and may cause more harm than good. It’s buyer beware! And the worst part is: you won’t be around to deal with these problems, while your legacy is that of leaving a mess behind!

written by pmmpa

Feb

Power of Attorney for Personal Care | Living Will (Ontario)

Powers of Attorney

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Power of Attorney for Personal Care | Living Will: Ontario

Well, I’m pleased to announce that we have just released a new product for Ontario: a Power of Attorney for Personal Care. This document can be used by you to specify who you want to make personal care decisions when you are mentally incapable of doing so yourself. Importantly, you can also include the terms of a “Living Will” (that is, your final wishes concerning your medical treatment when you are no longer able to communicate) into your Power of Attorney for Personal Care.

The Power of Attorney for Personal Care is now available for Ontario through the Power of Attorney Wizard. Simply select “Power of Attorney for Personal Care” when you are selecting the legal document you want to create.

written by pmmpa \\ tags: living will, ontario, poa, power of attorney for personal care, power of attorney wizard

Feb

Power of Attorney Wizard FAQs

Powers of Attorney

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Here are some common questions that you may be thinking about:

Questions about Us:

Q#1: Who is Dynamic Legal Forms Ltd.?
A#1: Dynamic Legal Forms Ltd. is a federal corporation with a head office in Toronto, Ontario, Canada. It is owned and operated by Toronto lawyer Michael Carabash (Founder / President). Dynamic Legal Forms Ltd. is not a law firm. Rather, it offers customizable, lawyer-prepared, and affordable legal forms for everyday Canadians. If you require specific advice, you should consult a lawyer.

Q #2: How reputable is Dynamic Legal Forms Ltd.?
A #2: We started in 2008. We have been featured in over 50 media spaces – including CBC’s Dragon’s Den, CTV News’ Consumer Reports, the Globe and Mail, Toronto Star, National Post, CFRB1010 Radio, CAD800 Radio, and much, much more (you can see all of our media attention here). Over 10,000 Canadians have bought our Will-O-Matic in 2012 and we have many testimonials from happy customers (and they keep on coming). We have also expanded the Will-O-Matic to include Australia (Queensland, Victoria, New South Wales, Western Australia, and South Australia) and the UK (England, Wales and Northern Ireland). If you want to talk with our technical support (because you want to hear a human being), we are hear to help, 9 a.m. to 5 p.m. EST (Toronto time), Monday to Friday.

Q#3: What about security?
A#3: When you’re filling out the Power of Attorney Wizard, you will be asked to enter personal information about yourself (so that you can generate a custom-tailored legal Power of Attorney). We take your security seriously. We use the most advanced security measures to help protect your information. This includes using an SSL Certificate (to encrypt data and allow for secure connections between your browser and our server) and monitoring our website for things like malware, cross-site scripting, SQL injections. We do not store your credit card information anywhere on our website. We also have daily backups of our website and database. Finally, we record all attempts to log into your account and will notify you by email if there are more than 3 unsuccessful attempts.

Questions about the Power of Attorney Wizard

Q #4: What is the Power of Attorney Wizard?
A #4: The Power of Attorney Wizard is the most advanced, comprehensive, and flexible online system to make a Power of Attorney for Property / Finances (in 7 provinces) or a Power of Attorney for Personal Care (in Ontario). It is based on provincial laws, prepared in conjunction with Canadian lawyers, and constantly updated and improved. In a nutshell: the Power of Attorney Wizard is an online questionnaire (or wizard) that takes your inputs and generates a custom-tailored Power of Attorney in the form of a .pdf. Your custom-tailored Power of Attorney also includes FREE bonuses:

FREE Signing Instructions at the end of the .pdf Power of Attorney(mandatory instructions and recommended steps)
FREE edits for 90 days
FREE eBook about Powers of Attorney in your province

Also worth mentioning is that the Power of Attorney Wizard is affordable. While the average Canadian lawyer charged $178 in legal fees (see Canadian Lawyer Magazine annual survey on legal fees) to produce a Power of Attorney in 2012, our Power of Attorney Wizard costs only $57 plus tax.

When you add all these things up – our attention to detail, the high quality Power of Attorney you get that is custom-tailored to your needs, the education, the FREE bonuses, the affordability, our reputation – you know that you are using a superior service. And that’s what makes us the best when it comes to getting your Power of Attorney done in a cost-effective and convenient manner.

Q#5: Do I have to complete the Power of Attorney Wizard in one sitting?
A#5: No. You can always save your information, log out, and then come back to our website and sign in. Once you are signed in, you can simply click “continue” to go through and complete the Power of Attorney Wizard.

Q #6: Will it be hard for me to understand?
A #6: Our Power of Attorney Wizard system has been praised for its simplicity. We have loads of guidance on every page of the Power of Attorney Wizard. Once you go through the Power of Attorney Wizard and you have produced your Power of Attorney and read the eBook, if you want to make changes, you can for FREE (it’s free for the first 90 days). So relax!

Q#7: After I download my Power of Attorney, can I go back and edit?
A#7: You can edit an UNLIMITED number of times FOR FREE after you have completed your Power of Attorney for the first 90 days. After the first year, you will need to pay a nominal amount to continue editing and updating your Power of Attorney.

Q#8: Does the Power of Attorney Wizard come with the Will-O-Matic?
A #8: At this time, the Power of Attorney Wizard is a standalone product. It does not come with any other legal form. Those can be purchased separately on our website.

Q#9: Is a lawyer required to review, witness, sign or notarize my Power of Attorney?
A #9: There is no legal requirement for a lawyer to be involved in getting your Power of Attorney done. But we always recommend that you get a lawyer involved if there are issues with your mental capacity, if you have a complex Power of Attorney or property / financial affairs, if you need a lot of customization, or if you feel there might be infighting between your loved ones when you are mentally incapable. Notarizing a document means making a photocopy of an original, showing it to a Notary Public (lawyer or a Notary Public) and having them sign and seal the photocopy saying that it is a true copy. Having a notarized copy is just for record keeping.

Q #10: How do I finalize my Power of Attorney?
A #10: You can only have one (1) original Power of Attorney. You must initial every page of your Power of Attorney and then sign the last page (using your ordinary signature) in front of appropriate witnesses (who is an appropriate witness depends on your province and is explained in the Power of Attorney Wizard and at the end of the signing instructions). Both witnesses must be adults (i.e. the age of majority) in your Province. After you have initialed every page of your Power of Attorney and signed the last page, each witness must initial every page of your Power of Attorney and sign the last page in front of you and the other witness. The witnesses do not need to know what is written in your Power of Attorney.

Q #11: Are there any additional costs associated with the Power of Attorney Wizard?
A #11: There is typically no additional cost which you must incur to complete your Power of Attorney with our package. That said, if you are required to obtain a lawyer or notary public’s signature as a witness (again, this depends on your province), then there may be a nominal fee they will charge for this service.

Q #11: Is the Power of Attorney that is produced by the Power of Attorney Wizard legal?
A #11: A Power of Attorney, regardless of who prepares it (even a lawyer), can still be challenged in court. Nobody – not even a lawyer – can guarantee that it will not be challenged. All that anyone can try to do is understand HOW Powers of Attorney can be challenged and then try to prevent those challenges from arising.

So, for a Power of Attorney to be valid in any province, there are some basic rules that must be followed. These rules are outlined in provincial Powers of Attorney legislation (this is discussed in greater detail in the eBook that comes with the Power of Attorney). These things include (but aren’t limited to): the making the Power of Attorney must be over the age of majority with full mental capability, the Power of Attorney must be written, the Power of Attorney must be signed by the person making it in front of appropriate witnesses (who acknowledge all of this and sign as well), etc.

So assuming these basic formalities are followed, then there is a better likelihood that a Power of Attorney – wherever it is obtained or however it is created – will be valid and enforceable.

With respect to our Powers of Attorney, we provide free signing instructions at the end (that repeat the above information) and also provide an eBook (as previously mentioned) so that you can better understand the basic legalities of a Power of Attorney.

Q #12: What happens to my Power of Attorney after I sign it and have it witnessed?
A #12: It is recommended to keep your original Power of Attorney in a safe place (e.g. a fireproof box or a safety deposit box at a bank). Make sure that the person you’ve selected as your “attorney” (though not necessarily your lawyer) has access to your Power of Attorney. Tell your family that you have made a Power of Attorney and where it is located.

Q #13: How do I update my Power of Attorney?
A #13: You should re-write your Power of Attorney whenever you update your Will – typically when your marital status changes (e.g. single, getting married, married, divorced, etc.), there are important changes in your financial position (e.g. you bought a new house), or there are significant changes involving your beneficiaries (e.g. births, marriages, name changes, separations, deaths, etc.).

Q #14: Can I use the Power of Attorney Wizard to prepare a Power of Attorney for someone else?

A #14: A Power of Attorney is a personal document and you should not be using the Power of Attorney Wizard to prepare a Power of Attorney for someone else. Doing so could invalidate the Power of Attorney (e.g. you pressured the person into making a selection that they would not have otherwise made) and make you liable for helping them prepare a Power of Attorney when you are not qualified to do so (i.e. you are not a lawyer and do not carry errors and omissions insurance).

Troubleshooting Issues

Q#15: Help! My voucher code is not working!
A#15: There may be a few reasons why your voucher code is not working:

The deal has not finished (we won’t receive the list of voucher codes until 24 hours AFTER the deal expires)
The voucher code was not entered properly (double check you’re entering it exactly as it is shown)

Q #16: Help! My Power of Attorney won’t print!
A #16: This may be caused by one or more of the following issues:

You need to register an account with us, go through the Power of Attorney Wizard, enter a voucher code or proceed to paypal and then click on the link that says “Click here to download your legal form”.
You need a .pdf reader on your computer, such as adobe reader or adobe acrobat. You can get those programs here.
You need to select the right printer in your print settings.
You need ink and paper in your printer.

Q#17: How do I edit my Power of Attorney?
A #17: Just sign in to your account and, under “My Legal Forms” and “Power of Attorney” look for the “Edit” button.

Q#18: I missed the deal! Can I still get it for $24?
A #18: If you are signed up for a daily deal website we have run the deals on in the past, you will likely get an email notification of when they go on sale again. Don’t miss out! Sorry, but we can’t sell these legal forms to you directly.

written by pmmpa \\ tags: power of attorney wizard frequently asked questions

Jan

Guest Post from Canadian Money Saver

Canadian Money Saver

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This is the first article in a series of four that will present the income tax implications of the death of a taxpayer (part one), the special rules for loss utilization, charitable donations, medical expenses and alternative minimum tax in the year of death (part two), the mandatory and optional tax returns that can be filed for a deceased taxpayer (part three) and strategies that can be undertaken while alive to minimize the income tax due on death (part four).

Implications of the Death of a Taxpayer

At death, a taxpayer may:

own marketable securities (shares of public companies, mutual funds, etc.) directly,
own marketable securities through an RRSP, RRIF or TFSA,
own real estate, such as rental properties and family-use properties (home, cottage), and own personal-use property, such as a car, boat, art and jewelry.

On death, a taxpayer is considered to have sold all their assets at a price equal to the market value at the time. In other words, the deceased has a “deemed disposition” of all their assets. Fifty percent of the resulting net capital gains (capital gains in excess of permitted capital losses) are taxable in the final personal tax return of the deceased.

When the deceased has an RRSP or RRIF, these plans are de-registered on death resulting in 100% of the value at the time of death being taxable – again, on the deceased’s final income tax return. Assets held in a TFSA at the time of death remain tax-free to the deceased.

An important exception to the above tax rules is when assets, RRSPs and RRIFs, are passed on death to a spouse (which for tax includes a common-law partner). When this is the case, no income tax will arise on the death of the first spouse. The surviving spouse will only have a tax liability:

when there is a future taxable event such as a sale of an inherited asset or a withdrawal from an RRSP or RRIF received from the deceased spouse, and
on the surviving spouse’s death.

With respect to a TFSA, the surviving spouse will not be subject to income tax on the income earned after the first spouse’s death if he or she was named as a “successor holder”.

Investments in Marketable Securities

As with an actual sale of a marketable security, not held within a RRSP, RRIF or TFSA, it is important to ensure the capital gain – or capital loss – is calculated correctly in reporting the deemed disposition. Obtaining the value of a publicly traded security at the time of death is not difficult, so the focus is on ensuring the tax cost (the adjusted cost base) of the security is not understated. Common errors in calculating the tax cost of a security are:

omitting the increase in the tax cost where the deceased taxpayer made the February 22, 1994 capital gains election as the $100,000 capital gains exemption ended,
ignoring non-cash mutual fund allocations of income which serve to increase the tax cost of mutual fund units,
not correctly taking into account stock splits and corporate “spin-offs”, and
forgetting to include acquisition commissions in the tax cost.

Rental Properties

With respect to the “deemed disposition” of rental properties held at death, a capital gain can be triggered on the land and building portions of the property. If the value at death is below the tax cost, then a capital loss may be claimed on the land portion. However, a capital loss on a depreciable asset, such as a building, is not permitted, so a capital loss is not permitted in respect of the building portion of a rental property.

In addition to the potential for a capital gain, the deceased is exposed to recapture past tax deductions of capital cost allowance (CCA or tax depreciation) claimed on the building portion. Recapture, or tax depreciation reversal, will occur when the value of the building on death is equal to or greater than the tax cost of the building. In this case, the tax rules imply that since there has been no economic loss on the building the depreciation claims were not warranted. As the past depreciation/CCA claims were 100% tax deductible, the recapture of these claims is 100% taxable.

If the building portion has decreased to a value that is below the depreciated value for tax purposes (the undepreciated capital cost or UCC), then a terminal loss may be claimed. This is really “negative recapture” and is 100% tax deductible. A terminal loss takes the “tax sting” out of not being permitted to claim a capital loss on the building portion of the rental portion.

Family-Use Properties

With respect to family-use properties, such as a home and a cottage, the deceased can make use of the principal residence exemption to shelter all or a portion of the accrued capital gains on these properties. Where there is more than one property it is necessary to decide on how best to use the principal residence exemption. This decision will be based on the amount of the accrued gain on each property at the time of death, the number of years each property was owned and the past use of the exemption by the deceased and the deceased’s spouse. Generally, it is best to make use of the principal residence exemption in respect of the property that has the “highest accrued capital gain per year owned.” If there is an accrued loss on family-use real estate, a capital loss is not permitted to be claimed.

In determining the tax cost of family-use real estate that has been held for a long time the beginning point is the value of the property on January 1, 1972. (There is no income tax on capital gains accrued before 1972.) The tax cost is then increased by improvements made to the property. Also, many taxpayers made use of the February 22, 1994 capital gains election to increase the tax cost of their cottages.

Avoiding Tax on RRSPs and RRIFs at Death

The deceased will not be subject to tax on the value of his or her RRSP or RRIF on death to the extent the RRSP or RRIF proceeds are:

transferred to a financially dependent child or grandchild, or
transferred to a Registered Disability Savings Plan (RDSP) of a financially dependent child or grandchild.

When the beneficiary of an RRSP or RRIF is a financially dependent child or grandchild of the deceased, the value of the RRSP or RRIF is taxed in the hands of the dependent rather than the deceased. If the child or grandchild is under 18 the tax can be spread over the number of years remaining until the child is 18 with the purchase of an annuity.

Should the financial dependency have been due to a physical or mental disability, the dependent can avoid being immediately taxed on the RRSP or RRIF proceeds by making a transfer to his or her own RRSP or RRIF or using the funds to purchase an annuity. Tax is then only paid by the dependent as withdrawals are made from the RRSP or RRIF or when an annuity payment is received.

A new provision in the Income Tax Act permits a deceased taxpayer to avoid tax on the value of an RRSP or RRIF at death where the proceeds are transferred to a RDSP of a financially dependent child or grandchild. The amount transferred to the RDSP cannot cause the beneficiary’s maximum RDSP contribution room of $200,000 to be exceeded and no Canada Disability Savings Grant is paid on the transfer. The beneficiary will pay tax as amounts are taken out of the RDSP.

For the child or grandchild to be considered financially dependent, his or her income for the previous year is not to exceed the amount used for the basic personal tax credit amount of $10,527 (2011). If the child or grandchild is disabled that amount is $17,868 (2011). This is the total of the basic personal tax credit amount and the disability tax credit amount. The Income Tax Act states that these amounts are to be used “unless the contrary is established.”

Tax-Free Savings Account

On death, the TFSA retains its “tax-free” status and no tax is payable by the deceased. If the surviving spouse is named the “successor holder” of the TFSA, the funds can be transferred to the surviving spouse without affecting the spouse’s TFSA contribution room. The TFSA of the deceased continues to exist and the income earned in the TFSA after the date of death is not taxable to the surviving spouse.

When the spouse is not named as a successor holder, but is named a beneficiary, he or she may still receive the deceased’s TFSA funds tax-free and contribute those to their own TFSA without affecting their TFSA contribution room. This is referred to an “exempt contribution”. The maximum the spouse can receive tax-free and the maximum exempt contribution that may be made is limited to the value of the deceased’s TFSA at the time of death. Any income earned in the deceased’s TFSA after death is taxable to the surviving spouse.

Beneficiaries other than a spouse, such as a child, cannot make an exempt contribution. Of course, any funds received can be contributed to their own TFSA provided the beneficiary has unused TFSA contribution room. The amount received by the beneficiary is not subject to tax to the extent it does not exceed the value of the TFSA at the time of the deceased’s death.

Personal-Use Property

Any taxable capital gains that result from the deemed dispositions of personal-use property, such as cars and boats, are subject to tax on death. If there are accrued losses on assets such as these, the capital losses are not permitted to be claimed. A capital loss on one personal- use asset cannot be used to offset a capital gain on another personal-use asset.

An exception to the above deals with personal-use property that is “listed personal property”, such as art, jewelry, rare books, stamps and coins. In respect of the deemed disposition rules on death, capital losses are permitted to be claimed on listed personal property assets but only to the extent they offset any capital gains on listed personal property.

The minimum value to use in calculating the gains and losses on personal-use property for both, the deemed market value at time of death and the tax cost, is $1,000.

by Brian Quinlan, Contributing Editor,

Canadian Moneysaver

written by pmmpa \\ tags: canadian money saver

Jan

Power of Attorney Alberta

Powers of Attorney

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Power of Attorney Alberta

I’m pleased to announce that we have just released our latest software for 7 Canadian Provinces:

The Power of Attorney Wizard will allow users to make a custom-tailored .pdf Power of Attorney for property and financial matters. There’s nothing else like it on the Internet. It’s been in the works for many months and will be available for the following provinces:

Ontario
Alberta
British Columbia
Saskatchewan
Manitoba
New Brunswick
Nova Scotia

So what makes the Power of Attorney Wizard so great? A lot! It is the most advanced, comprehensive, and flexible software out there for making a Power of Attorney (including Enduring Powers of Attorney). The amount of detail that went into this software is truly amazing. Here are some highlights:

Very comprehensive (nothing else comes close)
Very flexible in terms of the options (again, nothing else comes close)
Based on provincial POA laws (unlike other kits)
Created by a Canadian lawyer (i.e. me)
Comes with free signing instructions
Comes with free edits for 90 days
Comes with free eBook about Powers of Attorney for your Province
It will be regularly updated (particularly when the laws change)
Affordable: only $57 + tax!

I’m very excited about the Power of Attorney Wizard. It will go hand in hand with Canada’s #1 Will-creation software: the Will-O-Matic, which is offered exclusively here on DynamicLegalForms.com. I’m sure the Power of Attorney Wizard will get as much fanfare from the public and the press as the Will-O-Matic has received in the short time that it has been around.

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.

What is an Enduring Power of Attorney?

In Alberta, a “Power of Attorney” is a legal document that designates a person (known as an “Attorney”) to act on behalf of another person (called a “Donor”) in respect of their property and finances (if you’re reading this and preparing your Power of Attorney, then YOU are the Donor!). The word “Attorney” does not mean that the person is or becomes a lawyer. They are simply the person appointed as such and nothing more. Powers of Attorney are governed by the Powers of Attorney Act, R.S.A. 2000, c P-20. The word “Enduring” may appear in front of “Power of Attorney” and this means that the Power of Attorney includes a statement that it is to take effect on the mental incapacity or infirmity of the Donor OR it is to continue notwithstanding any mental incapacity or infirmity of the Donor (which occurs after the Power of Attorney is signed and witnessed). If the Power of Attorney is NOT “Enduring”, then it will cease to have effect when the Donor becomes incapacitated.

Why do you need an Enduring Power of Attorney?

The most common reasons to have an Enduring Power of Attorney include:

being able to manage your property and finances if you become ill, incapacitated, or suffer a serious injury; and
being able to manage your property and finances while you travelling away from Alberta for an extended period of time.

Examples of where an Enduring Power of Attorney comes in handy include: signing papers to purchase a residential home, transferring money into or out of a bank account, managing a business, or suing or defending yourself in a lawsuit. The benefits of having an Enduring Power of Attorney for Property include having control over who makes decisions on your behalf (and sometimes how they make those decisions) concerning your property and finances when you can no longer do so. Also, having an Enduring Power of Attorney for Property can help avoid litigation (and the wasted time, money, and effort) to see who will be appointed to be your trustee under the Adult Guardianship and Trusteeship Act, S.A. 2008, c A-4.2.

What if I don’t have a Enduring Power of Attorney?

If you do not have an Enduring Power of Attorney, your financial affairs are not automatically transferred to family members (a common misconception). Rather, someone must apply to the court to become “trustee” of your property. They do this by making a “Trusteeship” application under the Adult Guardianship and Trusteeship Act, S.A. 2008, c A-4.2. This application requires, among other things, a capacity assessment report respecting the adult who is the subject of the application and a trusteeship plan in the prescribed forms. In coming to a decision, the Court will examine whether the adult has sufficient capacity to making decisions respecting their financial affairs, assess whether less intrusive and less restrictive measures are available to adequately protect the adult’s best interests in respect of financial matters, and determine whether it is in the interests of the adult to appoint a trustee (given various factors). In general, the government (i.e. the Public Trustee under the Public Trustee Act, S.A. 2004, c P-44.1) does not step in to help; rather, it acts only in situations where no other suitable person is available, able and willing. This court process can be lengthy, costly and emotionally draining. It can also result in disagreements among your family members and friends, with the end result being that authority is given to someone whom you yourself might not have chosen.

What are the legal requirements to have an valid Enduring Power of Attorney?

To have a valid Enduring Power of Attorney under sections 2 and 3 of the Powers of Attorney Act:

It must be written and signed by the Donor and one witnesses (who must be present when the Donor signs). The Enduring Power of Attorney does not need to be in a set form or template.
The document must authorize a person to be an Attorney to make decisions, on the Donor’s behalf, concerning the Donor’s property and finances.
The Donor must be at least 18 years old at the time of making the Enduring Power of Attorney.
The Donor must be mentally capable of understanding the nature and effect of the Enduring Power of Attorney at the time they sign it.
The Enduring Power of Attorney must be signed by one witness who IS NOT: a minor, the Attorney, a person who signs the Enduring Power of Attorney on the Donor’s behalf, or the spouse or adult interdependent partner of the Attorney, Donor, or person who signs on behalf of the Donor.

With respect to the requirement that a Donor must have sufficient capacity to grant the Enduring Power of Attorney, the Donor must be over 18 years old and should:

know what kind of property he or she has and it’s approximate value;
be aware of the obligations owed to his or her dependents;
know that the Attorney must account for his or her dealings with the person’s property;
know what authority is being granted to the Attorney;
appreciate that the Attorney’s mismanagement could result in a decline of the value of property; and
understand the consequences of an Attorney misusing their authority.

Is a lawyer required?

The Powers of Attorney Act does NOT require that a lawyer prepare, witness, notarize, etc. your Power of Attorney for it to be legal. That said, if you have a complicated situation (e.g. specific attorneys for specific purposes, a limited scope power of attorney, etc.), it may be worthwhile to engage a lawyer to prepare a Power of Attorney or Enduring Power of Attorney for you. If you are worried that a party may challenge your ability to make the power of attorney (e.g. based on you lacking the mental capacity to do so at the time you signed it), then you should also consult a lawyer. They will know how to legally address this situation to reduce the risk of future challenges – for example, by getting a medical report confirming your capacity at the time you make the Power of Attorney.

How do you terminate an Enduring Power of Attorney?

If the Donor becomes mentally incompetent and is unable to revoke the Enduring Power of Attorney, the Enduring Power of Attorney and the Attorney’s authority to act will continue until or unless terminated in any of the following circumstances:

If, upon the application to the Court of an interested person, the Court were to remove the Attorney;
Upon the Court appointing a Trustee to act as Trustee of the Estate of the Donor under the Adult Guardianship and Trusteeship Act of Alberta;
Upon a Trustee being appointed to act as Trustee of the Estate of the Attorney under the Adult Guardianship and Trusteeship Act of Alberta;
Upon the obtaining of Court approval in the case where the Attorney has accepted the appointment and commences to act, but later wishes to resign;
Upon the death of the Attorney or the death of the last remaining Attorney; or
Upon the death of the Donor (in which case only the Personal Representatives of the Donor have the authority to deal with the Estate of the deceased Donor).

Do you have to deposit your Enduring Power of Attorney somewhere?

There is no requirement that you deposit your Enduring Power of Attorney in any specific place. Indeed, the government of Alberta does not offer any kind of registry for keeping Enduring Powers of Attorney. As such, it is best to leave the Enduring Power of Attorney in a secure place (e.g. fireproof safe, with a trusted third party) and let your Attorney know where it is (or give him or her a copy), along with your Last Will and Testament. Instead of making additional original versions of the Enduring Power of Attorney, it is best to make one version and then have a lawyer notarize a true copy of that original.

What happens when I die?

The Enduring Power of Attorney only has effect while the Donor is alive. When the Donor dies, their Will (if they have one) or Alberta’s intestate laws (if they do not have a Will) will govern the final disposition of their property. Here, the Attorney will need to account to the donor’s representative or trustee of their estate for the transactions that they entered into under the Enduring Power of Attorney: section 10 of the Powers of Attorney Act.

When does an Enduring Power of Attorney become effective?

An Enduring Power of Attorney generally takes effect IMMEDIATELY as soon as it is signed or when the Donor becomes mentally incapacitated or infirm. If you want the Enduring Power of Attorney to apply only at a certain time (e.g. a date) or upon the occurrence of a certain event (e.g. when you are deemed incapacitated by two independent medical practitioners), then it should clearly state that. You can indicate in your Enduring Power of Attorney who you want to be responsible for providing a written declaration that a certain time or occurrence of a certain event has happened: section 5 of the Powers of Attorney Act. That person can be your Attorney. If your Enduring Power of Attorney does not mention who will determine that you have become mentally incapable or infirm (or that person is unable or unwilling to make that determination), then “2 medical practitioners” will make that determination in writing: section 5(4) of the Powers of Attorney Act.

Duty and Authority of Attorney

The Attorney has a fiduciary or special trust relationship with the Donor. As such, the Attorney is required to act in good faith in light of the Donor’s best interests. The Attorney’s duties include: following the Donor’s instructions, avoiding conflicts of interest, being loyal to the Donor, and not using the Donor’s personal information in a way that could prejudice the Donor’s interests.

What is the basic structure of an Enduring Power of Attorney?

Introductory Clause

First, the Donor (the party making the Enduring Power of Attorney) and the nature of the document (e.g. Enduring Power of Attorney) are identified. The date on which the Power of Attorney is made is typically included here too. The date is important because, unless stated otherwise, the Enduring Power of Attorney generally takes effect from the time it is entered into.

Revoke Previous Powers of Attorney

Here, you can revoke any previous powers of attorney you have made. If you are making multiple Enduring Powers of Attorney (e.g. each one with a specific attorney to handle specific property), then just be sure to indicate that you are not revoking those ones too!

Powers of Attorney Act

This section indicates that the document is an Enduring Power of Attorney made in accordance with the Powers of Attorney Act.

Appointment an Attorney

Next, you’ll need to identify your Attorney. Use their full legal name and even adding an identifier (e.g. my son, my spouse, etc.) may help. You can also consider appointing more than one person as your Attorney. This may be to share or divide responsibilities and to make sure there are sufficient checks and balances on decision-making; at the same time, it may overly complicate things and cause headache (diverging opinions coupled with joint decision-making authority may cause delays and turmoil!). With respect to who you should select to by your Attorney, it is ideal to select someone who has knowledge or experience dealing with property and finances. This can be a family member, friend, or financial institution. The Attorney does not need to live in Alberta. Finally, you cannot appoint the Public Trustee to act as your Attorney.

Appointment a Substitute Attorney

For whatever reason, in case the individual you appointed is incapable (e.g. vacation, sickness, death) or unwilling (e.g. through retirement) to act or continue to act as your Attorney at the time they need to, you should appoint a substitute Attorney. Better be safe than sorry!

When Effective

Generally, an Enduring Power of Attorney becomes effective the moment it is signed by the Donor and witnessed. That said, pursuant to section 5(1) of the Powers of Attorney Act, the Donor can make it clear that they only wish the Enduring Power of Attorney to become effective “at a specified future time or on the occurrence of a specified contingency, including, but not limited to, the mental incapacity or infirmity of the donor”. Now, where the Enduring Power of Attorney becomes effective because of the infirmity or mental incapacity of the Donor, the Enduring Power of Attorney can specify who is required to make that determination for the Enduring Power of Attorney to take effect. If the Enduring Power of Attorney does not name a person or if that person dies or is unable or unwilling to make that determination, then section 5(4) of the Act says that the Enduring Power of Attorney shall become effective “when 2 medical practitioners declare in writing” that the Donor has become infirm or mentally incapacitated.

Authority of Attorney

An Attorney has the authority to make decisions on the Donor’s behalf concerning their property and finances. This includes doing things like: writing cheques on bank accounts, accessing safety deposit boxes, investing money, buying and selling securities, selling or managing real estate, signing documents related to property, collecting debts owed, or voting corporate shares which the Donor holds. An attorney can also exercise their authority with respect to the maintenance, education, benefit and advancement of the donor’s spouse, adult interdependent partner and dependent children: section 7 of the Powers of Attorney Act. You can also specify that your Attorney has the power, in his or her sole and absolute discretion, to act as your litigation guardian to commence/defend/represent you in court, to take annual compensation in light of being your Attorney, to deal with the Canada Revenue Agency on your behalf, etc.

It is worth mentioning that, unless the Enduring Power of Attorney says otherwise, an Attorney will be subject to the restrictions and conditions imposed on trustees when investing which are found under sections 2 to 8 under the Trustee Act, R.S.A. 2000, c. T-8. These sections require, for example, that the Attorney “invest trust funds with a view to obtaining a reasonable return while avoiding undue risk” and consider various factors in their investment decision-making. If a Donor wishes to avoid the restrictions imposed on an Attorney under the Trustee Act, they could add the following statement in their Enduring Power of Attorney:

“For greater certainty, My Attorney may invest my money in any kind of property and not limited to investments expressly authorized by law. When making investments, My Attorney shall not be subject to the criteria or requirements for making investments of the trust property which are prescribed by the law for trustees.”

Restrictions

Enduring Powers of Attorney may grant the Attorney an unlimited or limited power to act. If there are limitations, then they should be spelled out. For example, the Donor may limit the Attorney’s power by allowing them to only deal with certain property in certain places at certain times. The Attorney may be required to consider various listed factors before exercising their discretion. The Attorney may be required to consult with specific people. The Attorney may be required to resolve contentious matters in a certain way (e.g. mediation or arbitration). There may be prohibitions altogether on what the Attorney can do.

Protection of Attorney

Generally, the Donor will agree to release the Attorney from liability for losses or damage to the Donor’s property or financial affairs. Also, the Donor will generally agree to indemnify (i.e. pay) the Attorney for claims which may arise by their exercising or failing to exercise their duties under the Enduring Power of Attorney or under the laws that govern them. Both the release of liability and the indemnification provision would not apply, however, if they were brought about by the Attorney’s own dishonesty or gross negligence.

Worth mentioning is that, under section 14(1) of the Powers of Attorney Act, an Attorney is not personally liable to the Donor or any other person for acting under a Power of Attorney that was terminated or void because of the Donor’s mental incapacity or infirmity – BUT ONLY IF the Attorney did not know, and had no reasonable grounds for believing that the Attorney’s authority had terminated or been lost. Furthermore, in these situations, any exercise of the Power of Attorney is VALID AND BINDING in favour of any person who did not know, and who had no reasonable grounds for believing, that the Attorney’s authority had been terminated or lost: section 14(2) of the Act.

Incapacity

This section clarifies that the Enduring Power of Attorney continues to be effective even after the Donor has become infirm or mentally incapacitated – as permitted by the Powers of Attorney Act.

Matrimonial Property Act Consent

If the donor is or gets married, this section says that the Attorney can act on the Donor’s behalf with respect to the matrimonial home under the Matrimonial Property Act, R.S.A. 2000, c M-8. That Act defines the matrimonial home as property that is owned or leased by one or both spouses, is or has been occupied by the spouses as their family home, and which is either a house, part of a house, a mobile home, a residential unit, or a suite. This consent may be needed, for example, if the Donor is going through a divorce and has to divide his or her property under the Matrimonial Property Act’s regime.

Delegation

This section allows your Attorney to delegate, and revoke a delegation of, their authority to another person.

Litigation Representative

This section says that the Attorney can be the litigation representative to act on the Donor’s behalf in any court proceedings. Rule 2.11 of the Alberta Rules Of Court, Alta Reg 124/2010 says that a litigation representative is required for an adult involved in court proceedings who lacks capacity (as defined in the Adult Guardianship and Trusteeship Act) to make decisions. Rule 2.13 says that a person is automatically a litigation representative under the rules if the person has authority to start, settle or defend a claim on behalf of an individual under a power of attorney.

Legal Representative

This section says that the Attorney can be the legal representative of the Donor when dealing with government bodies, agencies, boards, etc.

Compensation

Unless the Enduring Power of Attorney says otherwise, an Attorney is entitled to receive a fair and reasonable amount of compensation for acting on behalf of the Donor. The amount of compensation may be specified in the Enduring Power of Attorney or may be based on the Trustee Act, R.S.A. 2000, c T-8. If the Donor is mentally incapacitated, then the Attorney must seek approval for their proposed fee from the Court in accordance with the Trustee Act; in that case, the Attorney is not permitted to pre-take compensation, but must wait for the direction of the Court in that regard. Any compensation received by an Attorney is considered to be taxable income from an office or employment and must be reported by that Attorney in his or her Income Tax Return for the year in which such remuneration was actually paid to him or her.

Acknowledgments

Here, the Donor will acknowledge various things to help ensure that they have sufficient mental capacity to make the Enduring Power of Attorney for Property.

Signatures

Use blue ink (to show it’s an original signature) instead of black. Also, please read above concerning who can qualify as a witness.

written by pmmpa \\ tags: alberta poas, alberta power of attorney, enduring poa alberta, enduring power of attorney, power of attorney alberta, powers of attorney, powers of attorneys alberta

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