Top 15 questions about Powers of Attorney

What is a Power of Attorney?

It is a legal document which authorizes another person to act on your behalf.

Is there more than one type of such a document?

Yes. Ontario law allows for three types. They are:

  1. A Continuing Power of Attorney for Property
  2. A Non-Continuing Power of Attorney for Property
  3. A Power of Attorney for Personal Care

What is a Continuing Power of Attorney for Property?

A It is a written legal document in which you give another person (your “Attorney”) the power and authority to make decisions concerning your property and financial affairs. It is called “Continuing” because it will continue in effect even if at a later time you should become mentally incapable of making these decisions on your own behalf.

What is a Non-Continuing Power of Attorney for Property?

It is a written legal document giving the same power and authority as the above-mentioned Power of Attorney. However, as the name suggests, it would not continue in effect should you subsequently become mentally incapacitated. This type of document is often used for a limited, specific purpose such as enabling another person to complete the legal paperwork for the sale of your home in the event that you are away elsewhere at the time.

What is a Power of Attorney for Personal Care?

A Power of Attorney for Personal Care is a written legal document in which you give another person (your “Attorney”) the power and authority to make decisions relating to your medical and personal care in the event that subsequently you are unable to make these decisions on your own behalf.

Why should I have a Continuing Power of Attorney for Property?

With such a Power of Attorney you decide who will step in with the required legal authority to make financial decisions if you become unable to do so. This document allows you to select the best person available to serve as your Attorney and in doing so you eliminate any uncertainty that might otherwise arise concerning which person should fill this role if you become unable to make these decisions.

If you do not have this Power of Attorney, a member of your family or someone else will be put to the time, trouble and expense of having to apply to the Office of the Public Guardian and Trustee of Ontario or, in some cases, to the Court to be appointed as Guardian of Property to act on your behalf. Needless to say, this is a legal proceeding to be avoided whenever possible. If you have a Power of Attorney for Property, you can choose who will act on your behalf. If you don’t have one, the Government or the Court chooses for you.

Why should I have a Power of Attorney for Personal Care?

This type of Power of Attorney enables you to take control of your future medical and personal care in the situation where you are no longer able to make such decisions. By choosing as your Attorney someone familiar with your situation and your wishes, you gain considerable comfort and assurance knowing that proper decisions will be made on your behalf.

You and your family also secure some peace of mind. Knowing your wishes in advance can relieve your family members of the otherwise heavy and stressful burden of making life and death decisions without knowing what you would have wanted. This can also spare them the guilt feelings which often flow from these difficult circumstances.

Who can I choose as my Attorney when making a Power of Attorney?

Ontario law permits you to appoint any person you wish including someone who resides outside Ontario. However, the person chosen must be at least eighteen years of age to act as your Attorney for Property and at least sixteen years of age to act as your Attorney for Personal Care .

Can I appoint more than one person to act be my Attorney?

Yes. You can have more than one Attorney, whether it be in a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care. If you choose more than one person you can determine whether they must make decisions together in agreement with one another (acting ”jointly”) or whether any one of the persons chosen will be entitled to make decisions with or without the approval of the other(s) (acting “severally”). Where you choose only one attorney it is advisable to select a second person to serve as a substitute or “backup” in the event that the first person chosen is unable to act as your Attorney for any reason.

What questions should I ask myself when choosing someone to act as my Attorney?

  1. How close to you personally is the person you are considering? If you are married and your spouse is up to the task, then he or she is the most likely choice. If not, then another close family member such as a sibling or an adult child would probably suffice.
  2. How close in terms of distance or proximity is the person you are considering? For reasons of convenience it is preferable to have your Attorney who lives nearby rather than on the other side of the country.
  3. Can the person you are considering be counted on to act properly and make decisions on your behalf which you would approve of if able to do so? When choosing an Attorney for Property you must be satisfied that the person chosen will prove to be honest, conscientious and capable of handling your finances.

In the case of an Attorney for Person Care you should feel confident that the person has both the level-headedness and sensitivity to handle the extremely difficult, sometimes delicate, decisions involved in dealing with serious or terminal illness.

What powers and authorities will my Attorney for Property have?

Unless you put specific restrictions in place, your Attorney for Property will have the same freedom to make decisions and take actions concerning your property and financial affairs that you would have, if able. Paying bills, signing documents and making investments are but a few examples of what your Attorney would be empowered to do on your behalf. There are two things which your Attorney for Property is not permitted to do on your behalf. The first is to make a new Continuing Power of Attorney for Property; the second is to make a Last Will and Testament.

Am I free to cancel or change a Power of Attorney after I give it?

Yes. Provided your are mentally capable, you can cancel or revoke a Power of Attorney previously given and have a new Power of Attorney prepared and signed reflecting any changes you wish to make.

Will my Attorney be entitled to receive payment or compensation?

Yes. Unless your Power of Attorney states otherwise, Ontario law gives your Attorney the right to receive payment for work done on your behalf. Payment is awarded pursuant to a fee schedule set by statute. However, where you choose a close family member as your Attorney, normally, they are serving out of natural love and affection for you. In this case you would provide in your Power of Attorney document that no compensation be paid to your Attorney.

Are there certain legal requirements which must be complied with in order to create a legal and valid Continuing Power of Attorney for Property and Power of Attorney for Personal Care?

Yes. There are and it is essential that these legal requirements be observed. Failure to follow them can result in a Power of Attorney being rendered null and void and of no legal effect. This can result in serious and, in some cases, catastrophic consequences.

Contract Law in Canada

The following is a general description of contract law in Canada, except Quebec, and the remedies for breach.

General

A contract is a promise or set of promises, the breach of which gives a remedy or the performance of which creates a legally recognized obligation. Contract law in Canada is, for the most part, governed by the common law of the provinces and territories or, in the case of Quebec, by the civil law as set out in the Civil Code of Quebec. Originating in, and adopted from, 19th century England, the common law affecting contracts has continued to develop over the years through decisions of the Canadian courts. Certain types of contracts will be impacted by statute, and the enforcement of all contracts will be subject to statutory limitation periods.

Formalities

Except for certain contracts that must be in writing or signed under seal, Canadian law recognizes the enforceability of promises, oral or written, provided there is “consideration” flowing from the promisee to the promisor or a mutuality of promises. Courts look to the parties’ bargain to determine an objective or manifest intent of the parties to be bound. Courts will also determine whether there has been an “offer” and “acceptance” based upon the type and transmission of communication between the parties.

Overview of Remedies

The law provides a multitude of remedies against those who breach their contracts. In addition to self-help remedies such as rights of set-off or termination for anticipatory repudiation, contracting parties have access to the courts for enforcement or obtaining redress in respect of agreements that are not being honoured. However, with the exception of certain types of equitable remedies (such as specific performance, injunctions or an accounting for profits), the most common and usual remedy for breach of contract will be an award of damages.

Damages

The general rule for recoverable loss in breach of contract cases is that the courts will award damages to place the aggrieved parties in the same position they would have been in had the contract been performed. Damages for mental distress or hurt feelings are not typically awarded, although Canadian courts have shown a willingness to award punitive damages in recent years for certain types of breached contracts (for example, employment and insurance). Owing in part to a reluctance of courts to award punitive damages for the breach of private agreements and the fact that most breach of contract cases will be heard by a judge and not a jury, the vast majority of broken contracts will result in damages governed by the general rule mentioned above.

Equitable Remedies

As a general principle, Canadian courts will not compel the performance of a contract. However, where it can be established that damages will be an inadequate remedy, Canadian courts have the power to order specific performance of a contract or to issue injunctions preventing the temporary or permanent breach of an agreement. In addition to, or in lieu of, this type of equitable relief, courts may also award damages but these are not awarded on the same principles as those governing common law damages. For example, damages might be awarded instead of an injunction where the injury that will result from a future unlawful action (such as a threatened trespass on land) can be adequately compensated for in damages. The breach of certain types of contracts (for example, distribution of licensed goods) may also entitle the aggrieved party to elect an accounting of the breaching party’s profits.

Liquidated Damages

In some contracts, the parties may choose to specify a liquidated sum of damages in the event of breach. The caveat here is that the specification of liquidated damages cannot be a penalty. If the liquidated damage clause is enforceable, it will avoid the need for the aggrieved party to prove their actual damages. In the absence of a liquidated damages clause, the aggrieved party will be entitled to damages directly resulting from the breach and consequential damages in the minds (or which ought to have been in the minds) of the parties at the time of contract.

Excuses for Non-Performance

Excuses for non-performance can include mistake (with or without rectification), misrepresentation, unconscionability, fraud, illegality or rendering the contract void for reasons of public policy. As mentioned above, certain contracts such as consumer agreements can be set aside for statutorily prescribed reasons. In some cases, performance of the contract may not be possible because events which neither party had anticipated have rendered the agreement radically different from what was undertaken by the contract.

Other Restrictions

Statutory limitation periods will impact upon enforceability depending upon when the breach occurred. The ability to enforce may also be affected by waiver or estoppel although most commercially written contracts will contain express provisions dealing with such matters. The assertion of collateral contracts affecting the primary contract may also affect enforcement.

If a contract to which you a party has been breached or if you are concerned that it will be breached contact Rabideau Law to better understand and protect your legal rights.

Frequently asked questions about Wills and Estate Planning

A Will is a document containing your instructions and wishes as to how you want your estate, property and assets, to be distributed after your death.

This page aims to provide you with a broad overview of what is a Will, the roles of the Testator (Will maker), Estate Trustee (Will administer) and Beneficiaries (persons who receive assets).

This page is not legal advice and you should not act based solely on any of the information contained below.

What Is a Will?

A Will is a document containing your instructions and wishes for the administration and distribution of your estate after your death. It is important to have a Will that records your wishes so that your assets such as your house, land, car, shares, bank accounts and insurance policies are distributed how you wish. Any person eighteen (18) years of age or older and of sound mind can make a Will. The person who makes the Will is called the “Testator”.

What Happens If I Don’t Have a Will?

If you don’t have a Will when you pass away you are said to have passed away “intestate”. The Courts will apply a legal formula to decide who will receive your assets. Your assets will be distributed according to a rigid formula set down by the laws of intestacy.

These laws may:

  • Force the sale of the family home or other family assets so other Beneficiaries can claim their share of the assets accordingly
  • Not provide future financial protection for your children or grandchildren or any other dependent
  • Leave incapacitated members of your family without adequate support or financial security
  • May give your assets to the government if you have no relatives

Furthermore you will have no say in who administers your estate or who may be appointed guardian of your children if they are under eighteen (18) years of age. If you do not have a Will, any family member may apply to the court for letters of administration which, in effect, gives them the power as Executor of your estate and they may legally administer your estate at their discretion.

What is the role of an Executor?

Executors are persons who you trust to dispose of your assets in accordance with the instructions in your Will. It is important to select someone who has an understanding of legal and financial matters so they can properly administer your estate. In most cases they will be entitled to a commission for the work required to administer the estate. The Executor, in effect, steps into the shoes of the deceased person and winds up the deceased person’s personal affairs.

Some tasks usually performed by an Executor include:

  • Locating the Will
  • Arranging the funeral
  • Applying for probate
  • Obtaining a death certificate
  • Informing investment bodies of the death
  • Locating family and Beneficiaries
  • Locating and assessing the value of assets
  • Paying debts, income tax, funeral expenses
  • Transferring assets and paying stamp duty; and
  • Distributing any surplus to Beneficiaries.

Your Executor may require the assistance of a solicitor to deal with the duties and obligations of administration or you may choose to nominate Ramsden Bow Lawyers as a professional Executor to administer your estate in an independent and professional manner.

What’s involved in nominating an Executor?

You can nominate a maximum of four Executors to act. You should obtain each Executor’s consent before making a nomination. Your Executor can also be a Beneficiary.

In selecting your Executors, you should keep in mind the following:

  • If you intend to leave the majority of your assets to a single person, such as your Spouse, then usually that person should be nominated as one of your Executors.
  • You can nominate an independent person, such as a friend or advisor, who you trust to act as co-Executor if you wish. It will be the responsibility of both Executors to work together in this situation.
  • Consider the Executor’s age before nominating them.

Especially if you nominate an Executor who is likely to pass away before you. If you nominate someone who is older than you, then you should consider nominating a substitute Executor as well.

You should also consider having substitute Executor(s) in the event a nominated Executor cannot act for some reason. For example, the complexity of administering the estate might be too complicated or your primary Executor is no longer available.

What are Beneficiaries?

Beneficiaries are persons who will receive your assets. They usually include your Spouse or Defacto partner and children. You may divide the assets in any way you wish. For example, you may wish to give children and step-children assets in percentage form with one Beneficiary entitled to a greater interest than the other. Alternatively, you may wish to divide your assets into equal shares. You may also provide specific gifts such as your jewellery, house or car to particular Beneficiaries. You may also set up trusts for any children or step-children so that assets will be passed to them when they reach a specific age.

Preparing Your Will

The following things should be considered when preparing your Will:

  • Who will be the Executors
  • Who will be the Beneficiaries
  • What are your current assets and liabilities and how would you like them distributed
  • Do you wish to have particular assets transferred to the Beneficiaries rather than sold
  • Who will take care of your children upon your death
  • Do you wish to be buried or cremated
  • Is their any special requests for your funeral or headstone
  • Would you like to set up a testamentary trust to provide for your children’s children at a certain age and minimise tax liability for them

As your Will is an important legal document it is important to make
sure all the details of your Beneficiaries are correct; including the proper names and addresses of Executors and Beneficiaries.

If I Get Married or Divorced, Does That Affect My Will?

If you marry after you have made a Will, the Will is generally revoked or cancelled, unless it was made in anticipation of marriage. If you divorce after you make your Will, it only revokes or cancels any gift to a former spouse. It also cancels your spouse’s appointment as Executor, trustee or guardian in the Will. However, this won’t apply if the Court is satisfied that the Will-maker did not intend by divorce to revoke the gift or appointment. If you wish to alter your Will or your marital circumstances change, you should seek the guidance of your solicitor to advise you accordingly.

What is a Testamentary Trust?

A testamentary trust is a trust established by a Will. It does not come into effect until after the death of the person making the Will. At this point in time, specified deceased estate property is transferred to a trustee who holds the assets on trust for the benefit of the Beneficiaries.

A testamentary trust is not the same trust as the deceased estate. Testamentary trusts are complex legal documents and require further legal advice than may be offered in this information sheet.

Should I name a beneficiary for my life insurance?

If you have a life insurance policy or superannuation account you should name the Beneficiaries directly with the insurance or superannuation company. That way they will not become part of the deceased estate and no commission will be paid to your Executors to have them transferred to the named Beneficiaries.

What happens to any old wills?

It is important to know the location of old Wills to either collect or destroy them or inform the holder that a new Will has been made and their services are no longer required.

5 things to do before selling your home

If you are planning to sell your house there are several things you should do before calling a real estate agent that will help you to get the most money out of your home and insure the quickest sale possible.

1. Remove Personal Items

Personal items such as family photos, knickknacks, souvenirs from family vacations, excessive houseplants, piles of books, pet toys and your collection of two-thousand-and-one salt and pepper shakers may make your home personal to you but your goal is to make your house inviting for another family to move in. By removing your most personal items, it will be easier for your prospective buyer to picture themselves living in your home.

Pack these things away neatly in boxes that can be stored in a closet, basement or attic. Try not to leave the boxes out where they will disrupt the look of your home.

2. Keep Furniture to a Minimum

You want the rooms of your home to appear as large as possible. You may need to rearrange some of your furniture or even remove a few pieces to achieve this. Ask a friend or neighbor if they could possibly store Grandma’s rocking chair, or Dad’s old writing desk, until after you’ve made the sale. Having furniture crammed into every corner not only makes your rooms appear smaller but also makes it difficult for a prospective buyer to picture their own furnishings in the space available.

If you don’t have anyone able to take these extras off your hands, look into renting a spot at a local storage space.

3. Clean Up

No matter what time of year it is when you decide to sell your home you will need to do a thorough spring cleaning. Wash the windows. Remove the dust bunnies from beneath the beds. Clear the cobwebs from the ceilings. Wipe down the baseboards. Straighten out the closets and cupboards. Keep up with your laundry and if you don’t have one, invest in a hamper for dirty clothes. When prospective buyers and real estate agents come in they look at everything and they will leave no cushion unturned.

4. Freshen Up

Look around your home for areas of wear and tear. If your hand railings are chipped, touch them up. If a piece of molding is loose, tighten it. Don’t go crazy redecorating but if your walls are dingy, a fresh coat of neutral-colored paint is a fairly inexpensive way to brighten any room. Wash the wallpaper and glue down any loose edges. Polish the cabinets and while you’re there make sure all of their knobs and hinges are tightly in place.

You want your home to look well cared for and as perfect as possible. Chipped paint and fraying wallpaper will make a bad first impression on a prospective buyer and remember you only get one chance to make a good first impression.

5. Get Good Curb Appeal

Keeping in mind the fact that you want to make a good first impression, you also need to remember that the first thing your prospective buyer is going to see is your front yard. There is no need to do any new landscaping but make sure that the landscaping you already have is neatly trimmed and weed free. Depending on the time of year, rake up any leaves, cut the grass, deadhead the flowers, remove children’s toys and if you have pets, be sure to keep after them as well.

Your front porch needs to be kept tidy as well. No muddy sneakers or left out snow shovels should be in sight. If you haven’t done it in awhile, give a good sweep and hose it down.

By taking care of these things before calling a real estate agent and then keeping up with them throughout the sale of your home, your chances of getting top dollar and a quicker sale are almost guaranteed. Good luck!

 

5 ways to lower your legal costs

1. Get a consultation

A good legal consultation is essential and well worth the cost. This 30 -60 minute block of time is going to help you decide the course of your entire legal situation. This is your chance to ask me questions, get information, and evaluate your case. The purpose of this consultation is to provide you with all the necessary information so you can make an informed and intelligent decision.

2. Organize yourself

Prepare a summary of the event. Begin the summary with the first instance that an event occured, indicate the date, time, place, who was present, what happened, who said what and what documents or other evidence is available. Label the documents numerically to coincide with the summary. Separate the documents, photos, etc. into folders. Also, the more information that you condense, the better our chances of success. Your intelligent summary will help save you legal fees.

3. Don’t give tons of unnecessary information

Very often you may want to give reams of paper or stacks of disks that are irrelevant and unrequested. This will result in me having to spend many hours reviewing information that isn’t necessary. The same goes for repetitive information given by email or phone.

4. Do for yourself when you can

I always prefer that my clients keep in touch with potential witnesses rather than relying on myself and my staff to have to continually keep in touch with them. Also, try to complete paperwork on your own first, rather than spending billable hours reading it for the first time while I sit and watch you. Make a “working copy” for yourself, and a “clean copy” that you can use in instances when we need to meet in person.

5. Utilize email efficiently

Rather than always meeting in person or talking on the phone, communicate via email. Email enables me the ability to answer you when I have the opportunity.

Following these few guidelines can significantly reduce the amount of money spent in legal fees!

 

5 steps to planning your business

There are thousands of tasks that every small business owner must consider and do in order to set up a new business. However, whether you are a new small business owner or an experienced entrepreneur, here are five things to remember when setting up a small business.

1. Develop a Business Plan

You’ve probably heard it a million times, but it’s worth repeating that often. Business owners who fail to plan are planning to fail. You must take the time to develop and write a business plan. It doesn’t have to be a novel-length tome, but at least something you can use to refer to occasionally to remember your goals and mission.

If you plan to acquire financing, a well-written business plan is essential to get investors or loans from local banks. Take the time to write one, and your business will not regret it.

2. Create a Great Business Name

When starting a new business, you need a good business name. A business name is not only how your business will operate legally, but it is also a marketing tool. Create a name that will:

Identify what your business does

Distinguishes you from other businesses

Be memorable

Be easy to pronounce

You could use your own name like “Smith Consulting” or be creative with your business concept like “Finders Keepers” for an antique collectible shop. Regardless, keeping your name simple is most important.

3. Consider Your Business Structure

What business formation will your small business take? When you start a new business, this is an important question. Many small business owners simply operate as sole proprietorships. Others may join forces and form a partnership, but you must consider the best structure that works for your business and protects you as well.

Other than sole or partner proprietorship, you might consider an LLC, or even a corporation. An LLC is a business form that creates a legal corporation-like structure with tax advantages of a partnership or sole proprietorship. A corporation sets up liability protection for the owners.

4. Recruit Your Support Team

Unless you plan to operate a large corporation with all support in-house, you will likely need to recruit an outside support team. You must find reliable and professional people like a lawyer, such as Geoff S. Rabideau, CPA, and insurance agent who can help you with these types of legal and financial business issues.

5. Get Tax ID, Licenses, and Registrations

Before you begin business operations and starting a new business, you should also consider any official requirements you need from government agencies. A federal HST number will be essential for keeping your income straight with the CRA, as well as employee taxes. Local business licenses will keep you in legal compliance with your city, and registering your business with the provincial business registry prevents any confusion with a business of the same name.

When you think of how to set up a small business, you must consider the above factors. Although this list is important, it is not complete. Keep in mind that there are plenty of other things to consider, but breaking your list down into easy-to-manage portions will help prevent you from becoming overwhelmed and allow you to stay on track.

 

5 things to consider when expanding your business

When it comes to building a company from scratch, most entrepreneurs create a list of goals they hope to accomplish within a certain time frame. One of the biggest and frequent goals is to achieve consistent growth.

Here are five critical points you should consider when expanding your business:

1. Determine your value proposition

When deciding where to expand, you need to determine whether your services are unique and valuable within prospective markets.

2. Learn to replicate the business model

Attempting to take a formula and transfer it to a new city can be a daunting, but necessary, task to ensuring a successful acquisition. It’s essential for an established business model to be secured early on and a new destination selected where the business has the ability to flourish.

3. Find a cultural fit

When searching for a business to acquire, examine closely the team, even more so than the company’s client base. Finding people who could embrace and foster your company culture is necessary for the acquisition to succeed. To that end, it’s important to focus on the experience of team members and ensure their skills are compatible with the company’s stated mission and core values. Acquisitions tend to fail more often because of the incompatibility of both organizations’ cultures.

4. Decide whether to build or buy.

When considering an acquisition, both parties involved may wonder if it’s better to grow organically or completely merge with another firm. It’s important to weigh the options.

5. Believe it will happen

Growing a company in a new market can be a terrifying, yet exciting, process with many lucrative benefits. When going through the acquisition process, it’s important to believe it will work. Most successful entrepreneurs realize that when you grow anxious over the minor details, you can lose sight of why you’re making the deal in the first place. It’s best to follow your gut and have faith.