1. Capacity (30 Minutes) 10:00am – 10:40am
Kimberly Whaley of WEL Partners and Mark McCabe of the Toronto Police Service
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.
2. Elder Abuse Update (40 Minutes) 10:45 a.m. to 11:15 a.m.
Dr. Kenneth Shulman of Sunnybrook Health Sciences Centre
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.
3. Capacity Proceedings (40 Minutes) 11:20 a.m. to 12:00 p.m.
WEL Partners – Matthew Rendely and John Poyser
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) 12:05 p.m. to 12:45 p.m.
WEL Partners – Kimberly Whaley and Daniel Paperny
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) 1:30 p.m. to 2:10 p.m.
WEL Partners –Bryan Gilmartin and Paul Murphy
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) 2:15 p.m. to 2:55 p.m.
WEL Partners – Daniel Paperny and Mark Handelman
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) 3:00 p.m. to 3:40 p.m.
WEL Partners – Matthew Rendely and Daniel Paperny
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) 3:45 p.m. to 4:25 p.m.
WEL Partners – John Poyser and Laroux Peoples
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 (50 Minutes) 4:30 p.m. to 5:20 p.m.
WEL Partners – Kimberly Whaley and Albert Oosterhoff
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.
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We look forward to seeing you at our upcoming events. Should you have any ideas for topics, speakers, sponsorship or anything else, feel free to contact Melanie Russell, CPA, CA, CBV, CIM, CFE, CFF, ABV at 416-488-9590 x 225.
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About the Instructor(s)
Bryan Gilmartin , BMus, JD
Bryan joined WEL Partners as an Associate in June of 2020 after Articling with the firm.
Bryan completed the Dual J.D. program at the University of Windsor and the University of Detroit Mercy. Prior to law school, he obtained his Bachelor of Music in Jazz Performance from the University of Toronto with honours.
During law school, Bryan completed a legal internship with Wayne County Corporation Counsel in Detroit, Michigan, and served as Chair of the Windsor Law High School Outreach Symposium Committee. He also worked with the Veterans’ law clinic and served on the executive of the Windsor Fashion Law Society.
Bryan comes by his keen interest in estate litigation honestly. Growing up, living and working at his family’s Funeral Home in a small northern Ontario community showed him the importance of dealing with all end of life matters in a professional and caring manner. He recognizes the significance of this time in the lives of clients and enjoys navigating the challenges and sensitivities that accompany this area of the law.
When not practicing law, Bryan enjoys, travelling, performing music and cooking exotic and exciting foods for family and friends. When time dictates, he can be found on the golf course and has also been known to take part in the odd fly fishing trip.
Mark Handelman, BA, LLB, MHSc (bioethics)
Mark Handelman was called to the Ontario Bar in 1978 and holds an MHSc in Bioethics from the University of Toronto Joint Centre for Bioethics. Mark was first appointed to The Consent and Capacity Board in 1998 and served a ten year term, for 8 years of which he was a Vice Chair and Senior Lawyer Member.
In August 2019 Mark was reappointed to the Board. He was a part time Member of The Ontario Human Rights Tribunal from 2008 to 2018. From 2008 to 2019, Mark practiced elder law and health care law, frequently representing patients, their families and health care practitioners before the Board and in the Courts. His articles on consent and capacity law, mental health law, end of life-decision making and Powers of Attorney, some coauthored with physicians or bioethicists, have appeared in the popular press as well as peer-reviewed medical and legal journals. He is a member of Pro Bono Ontario and volunteers at Casey House.
Until 2002 Mark lived and practiced law in London, Ontario, where he also served as President of The Better Business Bureau, President of the London Chamber of Commerce, Director of The Ontario Chamber of Commerce, the National Council of Better Business Bureaux, The London Club and of Congregation Or Shalom.
He was one of the first members of Ontario’s Child Representation Program and wrote some 300 restaurant reviews and food articles for The London Free Press. Mark’s practice now focuses on preparing Wills and Powers of Attorney frequently for persons of diminished capacity. He is Counsel to the law firm Whaley Estate Litigation Partners.
Daniel M. Paperny, BA (Hons), JD
Daniel joined WEL Partners as an Associate lawyer in September of 2018. Prior to joining WEL Partners, Daniel practised estate litigation at a large law firm in downtown Vancouver, BC where he focused on estate litigation, commercial litigation and insurance litigation. Daniel has appeared at the BC Supreme Court, the BC Court of Appeal and the BC Provincial Court.
Daniel obtained his B.A. from the University of Toronto in 2011 and his Juris Doctor from the Univiersity of British Columbia in 2014. Daniel was called to the British Columbia Bar in September of 2015 and called to the Ontario Bar in September of 2018.
Daniel was named as a Partner at WEL Partners in September of 2020.
Since joining WEL Partners, Daniel has appeared as counsel before various levels of Court in Ontario, and before the Consent and Capacity Board.
Daniel is a regular speaker for the Ontario Bar Association and Elder Abuse Prevention Ontario, presenting on a number of estate-related topics including the importance of making a will, up-to-date estate planning, powers of attorney and the prevalence of elder abuse in Canada and ways in which it can be prevented and remedied.
Daniel is a member-at-large on the OBA’s executive committee for Sole Small Firm and General Practice Section, and a member of the Trial Lawyer’s Association of Ontario and the Advocates Society.
Daniel is passionate about estate litigation and recognizes the crucial importance of this time in the lives of his clients. By utilizing technical skill, teamwork and compassion, Daniel seeks to alleviate the difficulties and stresses that often accompany litigation, toward achieving optimal results for clients. Daniel is always looking for innovative ways in which to reach solutions for his client, while at all times remaining mindful of the value, costs and pressures of litigation.
When not practicing law, Daniel enjoys running, cycling and spending time outdoors with his wife, daughter and their pet Chihuahua.
Laroux PeoplesLaroux operates a remote law practice based out of Toronto, Ontario devoted to wills, estates and trusts. Laroux is a member of the Ontario Bar Association’s Trusts and Estates Section and regularly provides presentations to various community groups on estate planning and administration. Prior to opening her own practice, she worked for the Ministry of the Attorney General as an Assistant Crown Attorney. Laroux has a J.D. from the University of Windsor Faculty of Law, an M.A. in Immigration & Settlement Studies from Ryerson University and a B.A. (Hons.) in Political Science from the University of Toronto.
John E. S. Poyser, BA, LLB, TEP
John Poyser is a senior lawyer with WEL. He has been a lawyer since 1987 and, over the last twenty years, has limited his practice to matters arising out of gifts, wills, trusts and other wealth transfers. He obtained his Ontario call to the Bar in 2016. He is also licensed to practice in Alberta and Manitoba. His Ontario practice through WEL is limited to estate litigation. He challenges and defends the transfer of wealth by will, gift and trust, and provides consultations to lawyers from other firms who are pursuing legal action in those areas.
Nationally, he is a past chair of the Wills, Estates and Trusts Section of the Canadian Bar Association (the “CBA”), and a past Deputy Chair of the Society of Estate and Trust Practitioners (“STEP”). Internationally, he sat as a member of STEP’s Worldwide Council from 2013 to 2016.
As an author, he wrote Capacity and Undue Influence, an eight-hundred page textbook published by Carswell in 2014. It canvasses the law relating to the transfer of wealth by will, gift, and trust, and helps lawyers and judges deal with attacks on those transfers. As a prior project, he coauthored ten editions of a textbook for Carswell entitled The Taxation of Trusts, a Practitioner’s Guide, dealing with taxation and planning issues relating to trusts and estates. John is also a regular contributor of articles in The Estates, Trusts and Pensions Journal.
He was the Founding Editor of The National Concordance, a compendium assembling and comparing succession laws across Canada, jointly published on-line by the CBA and Westlaw ECarswell, and continues in the role of Managing Editor for that publication. He serves as an Associate Editor of The Estates and Trusts Reports.
As a lecturer, he speaks regularly for law societies and bar associations across Canada. John has two children, and one wife. He loves Las Vegas, hates mosquitoes, and has been a regular driver for Meals on Wheels since 1995.
Matthew Rendely, BA (Hons), JD
Matthew Rendely is a Partner at WEL Partners, where he practises exclusively in the areas of wills, estates, trusts, powers of attorney, guardianship, and capacity related litigation. He is a passionate advocate for his clients.
Since being called to the Ontario Bar in 2015, Matthew has worked on matters at all levels of court, including the Supreme Court of Canada.
Matthew received his Bachelor of Arts with an Honours and Specialization in History at the University of Western Ontario. He then travelled to Australia, where he obtained his law degree with honours at Bond University.
Matthew recognizes the need for volunteer legal counsel. He has volunteered as duty counsel with Pro Bono Law Ontario at the Superior Court of Justice and the Small Claims Court in Ontario. Matthew also participated in the HIV & Aids Legal Clinic Ontario (HALCO) Will and Power of Attorney Clinic.
Dr. 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.
KIMBERLY A. WHALEY CS, TEP, LLM, Founding Partner, WHALEY ESTATE LITIGATION PARTNERS (litigation firm in Toronto, practicing throughout Ontario and repeatedly ranked by Canadian Lawyer as one of Canada’s Top 5 & 10 Boutique Trusts & Estates Firms), practicing in the areas of Estate, Trust, Fiduciary Litigation including Power of Attorney Disputes, Fiduciary Accounting Applications, Guardianship, Applications 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 repeatedly recognized as a leading practitioner by Chambers, Lexpert, Lawday, Best Lawyers, Martindale-Hubbell and Canadian Lawyer.
Kimberly has held various executive board positions with the Society of Trust and Estate Practitioners Worldwide (STEP) holding the designation, TEP. In 2019 Kim was presented with a book prize at the June STEP Toronto National Conference for the session she planned and presented with colleagues on capacity. In September 2019 she was presented with the award of STEP Toronto volunteer of the year.
Kimberly is a Past Chair of the OBA Estates ad Trusts Section Executive, CBA Elder Law Section and immediate past Chair of the OBA Elder Law Section and has been on other OBA/CBA executives and committees over a number of years.
Kimberly is a frequent lecturer at various Universities 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, and the Canadian and Ontario Bar Associations as well as within the community, at community centers, libraries, hospitals, Toronto and Ontario Police and with various other professional, governmental and not-for-profit organizations.
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, as well as a reappointed member of the Ontario Securities Commission Seniors Expert Advisory Committee.
Kimberly is an invited member of The International Academy of Estate and Trust Law (TIAETL), and a Fellow of the Canadian Center for Elder Law (CCEL).