Trust and Estates for Financial Professionals

20 Oct 2020, 8:30 AM

8.5 CPD hours


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Course Description

Please note that this is a full day event and will be held at the Donalda Club. The structure of the event is as follows:

  • Registration & light breakfast – 8:30 a.m. to 9:00 a.m.
1. Elder Abuse Update (40 Minutes)

Kimberly Whaley of WEL Partners and Mark McCabe of the Toronto Police Service

Changing demographics render the law as it affects older individuals increasingly important. Older individuals can also be particularly prone to legal abuses. Elder abuse, or the abuse of older adults, is often defined as any act or omission that harms a senior or jeopardizes his or her health or welfare.

According to the Canadian Department of Justice, financial abuse is the most commonly reported type of abuse against older adults. Financial abuse comes in various forms. It can consist of the improper use of joint bank accounts, forgery or abuse involving a Power of Attorney document, sharing an older adult's home without payment or sharing in expenses, misuse, appropriation, or theft of an older adult's assets, transfer of real property, ATM fraud and others.

2. Capacity (40 Minutes)

Kimberly Whaley of WEL Partners and Dr. Kenneth Shulman of Sunnybrook Health Sciences Centre

Capacity is a complicated concept in that each task has its own standard, and often the issues involved where capacity is in question can be very complex. Because of the complicated nature of decisional capacity, and in the absence of statutory definitions to take the guesswork out of such matters, a professional working in practice areas touching on decisional capacity where capacity is at issue must be constantly mindful of the client's capacity to complete a particular task and the importance of knowing as much as possible about who the client is and why the client is seeking to undertake the particular task.

3. Capacity Proceedings (40 Minutes)

WEL Partners - TBA

People, in general, are presumed to be capable to make decisions unless declared otherwise incapable of making certain decisions. Lawyers are often entrusted with helping people implement some of their decisions, and in so doing, they assess a person's capacity, sometimes without their even realizing they are making such an assessment. Courts, in turn, may be asked to decide whether an individual had the required capacity at the time that the person made certain decisions. It follows that a court would be most interested in the assessment a lawyer made of the individual's capacity. This discussion will explore these different standards of capacity and the factors to be considered when assessing capacity.

4. Will Challenges (40 Minutes)

WEL Partners - TBA

In essence, a will represents a person's intentions with respect to the distribution of his or her estate upon death. As such, a will challenges typically only arise after the only person able to verify the validity of a will has passed away. A challenge to the validity of a will may be brought on a finite number of grounds by any person with a financial interest in an estate. In Ontario, this involves following well-established procedures set out in Rule 75 of the Rules of Civil Procedure. This discussion will explore these procedures, the grounds upon which a will may be challenged, and some important principles that have evolved by way of the common law.

5. Dependant’s Support & Family Law Act Elections (40 Minutes)

WEL Partners - TBA

As family dynamics in Canada have shifted away from the previous norm of a single “traditional” marriage towards an increasing number of blended families and common law relationships, the need for comprehensive (and adequate) estate planning has become a complex concern. As a result, the relationship between family law and estate litigation has also become increasingly dynamic. Where a deceased person fails to adhere to their statutory obligations, surviving spouses and/or dependants may seek to enforce on their legal rights as against a deceased’s estate pursuant to the Family Law Act and the Succession Law Reform Act or, if access to the provincial legislation is denied or provides an inadequate remedy, a variety of equitable claims can be made pursuant to the common law. This discussion will explore the options available when a deceased person has not adequately provided for his or her dependant(s).

6. Powers of Attorney and Related Disputes (40 Minutes)

WEL Partners - TBA

The Power of Attorney document (the "POA") has long been viewed as one way in which a person can legally protect their health and their financial interests by planning for when they become ill, infirm or incapable of making decisions. The POA is also seen as a means to minimize family conflict during one's lifetime and prevent unnecessary, expensive, and avoidable litigation. In certain circumstances, however, POA documents may cause rather than prevent conflict. This discussion will explore the different types of POA documents, the duties of attorneys, the common abuses of POA documents, and a review of civil and criminal remedies available for those who are victims of abuse through the use of POA documents.

7. Guardianship (40 Minutes)

WEL Partners - TBA

Individuals who are unable to manage their finances and personal care and who are not capable of making their own financial or personal care decisions are vulnerable and may be susceptible to abuse. Guardianship, often a choice of last resort, is one means of managing the affairs of individuals under disability. This discussion will provide a broad overview of the guardianship regime in Ontario, the appointment process and powers and obligations of guardians under the various statutes, including an introduction to the rigorous accounting and reporting obligations of guardians.

8. Drafting Considerations (40 Minutes)

WEL Partners - TBA

Estate planning can be a minefield. There are several considerations that drafting lawyers have to keep in mind when preparing testamentary documents and powers of attorney. Furthermore, tax practitioners are usually intimately involved with designing the plan and reviewing the documents that are required to implement it. A Plan that is well designed can unravel if it is not properly implemented. This, in turn often leads to adverse tax consequences and estate litigation which will inevitably involve the planners as well as the implementers. Therefore, tax practitioners need to understand some of the most important basic implementation issues that can lead to such results.

9. Fiduciary Accounting & Compensation (40 Minutes)

WEL Partners - TBA

Taking on the responsibility of a fiduciary is an onerous and challenging task and increasingly one which risks being less than fully compensable. A fiduciary attracts scrutiny by virtue of the appointment itself. The role and responsibilities are further complicated by surrounding emotion, and often litigation commenced by those to whom the fiduciary is accountable.

The role demands trust, integrity, and transparency and exposes one to professional and personal liability. Increasingly, fiduciaries are asked to account informally and more formally before a court. Keeping proper accounts and being in a position to formally account is critical. This discussion explores the processes and procedures which are mandatory as well as guidelines for best practices. 

If you can't make the event, your registration fee entitles you to unlimited access to the event webinar that will be posted shortly after the event and, of course, the PD certificate from listening to the webinar.  If you prefer a refund, please ensure that you give us at least 48 hours notice. 

We look forward to seeing you at our upcoming events.  Should you have any ideas for topics, speakers, or anything else, feel free to contact Melanie Russell, CPA, CA, CBV, CIM, CFE, CFF, ABV at 416-488-9590 x 225. 

Course Walkthrough

  • Certificate: Trust and Estates for Financial Professionals
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About the Instructor(s)

Picture of Kenneth I. Shulman
Kenneth I. Shulman

Dr. Shulman graduated from the Faculty of Medicine, University of Toronto. He did his postgraduate training at the University of Toronto and the Institute of Psychiatry in London, England and completed a Master’s degree in Health Policy and Management at the Harvard School of Public Health. He is Professor of Psychiatry and was the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Dr. Shulman has had a longstanding interest in testamentary capacity and related capacities as well as vulnerability to undue influence. He has been qualified as an expert witness in Estate matters in Ontario, Alberta, Texas and Bermuda. For several years, he co-chaired the task force on Testamentary Capacity for the International Psychogeriatric Association (IPA). Together with colleagues he has published several papers on testamentary capacity in international journals, including an update on Banks v Goodfellow in the Canadian Bar Review. He is a frequent presenter at legal and finance continuing education conferences on Estates and Trusts.

Picture of Kimberly Whaley
Kimberly Whaley

KIMBERLY A. WHALEY, CS, TEP, LLM, Founding Partner, WHALEY ESTATE LITIGATION PARTNERS (a litigation firm in Toronto, practicing throughout Ontario and repeatedly ranked by Canadian Lawyer as one of Canada’s Top 5 Boutique Trusts & Estates Firms and now in the Top 10 category), practices in the areas of Estate, Trusts, Fiduciary Litigation including Power of Attorney Disputes, Accounting Applications, Guardianship, Claims for Dependants’ Support, and Elder Law.

Kimberly is designated as a Certified Specialist in Estates and Trusts Law by the Law Society of Ontario and is recognized as a leading practitioner by Chambers, Lexpert, Lawday, Best Lawyers, Martindale‐Hubbell and Canadian Lawyer. Kimberly has held various executive positions with the Society of Trust and Estate Practitioners Worldwide (STEP) and holds the designation as TEP, the OBA and CBA. She is the immediate Past Chair of the CBA Elder Law Section and current Chair of the OBA Elder Law Section. Kimberly is a frequent lecturer and has been an Adjunct Professor at the University of Toronto, Queen’s University and Western University.

Kimberly regularly presents and chairs programs with the Law Society of Ontario, the Canadian Bar Association, and the Ontario Bar Association. Kimberly is an active leader in the community in her elder law initiatives serving as Civilian Co‐chair on a Toronto Police Services Consultative Committee, and sits on the Ontario Securities Commission Seniors Expert Advisory Committee. Kimberly is a member of The International Academy of Estate and Trust Law (TIAETL).

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