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Capacity: What is it and why is it needed to plan an estate?

wills Apr 08, 2020

In Alberta, the only limitation to a person over 18 signing a Will, Power of Attorney and Personal Care Directive is that they have the mental capacity to do so. It may seem like a simple concept, but the truth is many people don’t know that capacity is required to have these documents made for individuals.

Why is Capacity Needed?

The largest concern for these Estate Planning documents is that the person executing them, at the time of execution, understood the nature and effect of what they were signing. These documents allow another person or persons to have large amounts of control, the need for capacity comes from the desire to ensure that people giving away that level of control understand exactly what they are doing. If it is determined that capacity was not held at the time of execution, the court can declare the document invalid and it is no longer of any effect. 

What is Capacity?

For Wills this mental capacity is sometimes called "testamentary capacity" and...

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COVID-19: Let's Stay Safe

firm updates Apr 01, 2020

What a challenging time!

I have been amazed and brought to tears by the generosity and courage that my fellow Albertan's have shown towards one another. Especially our health care professionals who have worked tirelessly to provide support to everyone who needs medical assistance.

I am currently reading The Splendid and the Vile- A saga of Churchill, Family and Defiance during the Blitz by Erik Larson. The book is a biography on Winston Churchill and last night I came across a quote by Churchill that I felt was as needed today, as it had been in England in 1941. 

" Do not let us speak of darker days; let us rather speak of sterner days. These are not dark days, these are great days - the greatest days that our country has ever lived; and we must all thank God that we have been allowed, each of us according to our stations, to play a part in making these days memorable in the history of our race."

Estate Connection Law Office wants to play its part in keeping our...

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What do I do with my timeshare?

What is a Timeshare?

In simple terms, a timeshare is ownership of a property (typically, a vacation home) for a limited period of time (one to two weeks).

Timeshare Contracts

As all timeshare contracts are different, it is important to understand the specific terms of your agreement. In addition to maintenance fees, owners may be required to pay a special assessment if, for example, structural damage occurs to the property. Many timeshares are old and need to be reconstructed, and the cost of this could pass on to the owners if there is a provision in the contract stating so.

Inheriting a Timeshare

Most timeshare agreements include an “in perpetuity clause”, meaning that the individual who inherits the property can be required to pay the annual maintenance fees for the length of time it is owned. This obligation would pass on to any individual who inherits the timeshare upon the original owner’s death. While the beneficiary can be held liable for this...

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Why do I need an RPR with compliance to sell my home?

real estate Mar 18, 2020

A Real Property Report (‘RPR’) is a document that is prepared by a survey company; it shows the structures plotted within the borders of property and outlines where they are located in relation to the border lines.

The report is then sent to the property’s municipality to determine whether the structures (including buildings, decks, fences, garages, sheds, etc.) comply with municipal bylaws and have the required building permits. If all regulations are met, the municipality will provide a Compliance Certificate.

It is imperative that a seller obtains an RPR prior to accepting an offer from a buyer for two main reasons: (1) The standard Real Estate Purchase Agreement states that the seller will provide the buyer with an RPR prior to the deal closing; as such, it is highly recommended to complete this sooner rather than later. This will likely reduce costs and alleviate stress for both parties; (2) If the report indicates that there is an issue with compliance after...

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A Guide to Aging in Place

miscellaneous Mar 11, 2020

“Aging in place” does not have a concrete definition; it can mean different things to different people.

For some, to age in place is to modify one’s home so they can remain in a place of familiarity. For others, it can mean downsizing and purchasing a smaller home that already meets their needs. Or, it could mean finding a facility that has different levels of care. Whatever your definition may be, it is our hope for you to live comfortably as you grow older.

We recently met with one of our longstanding clients for a Will Review meeting (remember, it is important to take your Will out every five years or so to ensure that it still reflects your wishes). At this meeting, our clients began contemplating whether or not they should relocate to a city closer to their children. They knew they were aging and wanted to plan accordingly; this conversation got us thinking about Aging in Place.

We let our clients know that they are not alone. Over the past few...

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Who represents the estate when there is no will?

estates executor probate Mar 04, 2020

If there is no will, certain people are entitled to apply for a Grant of Administration. This is the type of Grant that is used when there is no will.  The application should be made by the person who has the highest priority and is willing and able. People with preference can renounce, and people at the same level of priority can apply. If no one at the level wants to use, people at a lower level of priority can apply. If the estate is bankrupt and no family is willing to apply, a creditor can apply. The Crown can also apply.

The priority levels are as follows:

  • Surviving spouse or adult interdependent partner
  • Children
  • Grandchildren
  • Other children of the deceased
  • Parents
  • Siblings
  • Children of siblings
  • Other next of kin

Preference may be given to people living in Alberta.

If the family cannot agree on who should apply, the court will decide. The court can choose to appoint a neutral personal representative, such as a trust company. While this may sound easy and...

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Resealing Foreign Grants: How can we help?

estates probate Feb 26, 2020

We regularly act for lawyers and clients throughout the world. We have completed Canadian Probate applications from Thailand, United Kingdom, Germany, Spain, Texas, Hawaii, New York, North Dakota, and recently handled an estate in Scotland that had a resealing issue.

Our office can be appointed to act as the executors' agent and to call in the assets of the estate and wire the proceeds to beneficiaries. The most recent Scottish Estate application we handled took almost 12 months and cost the Scottish executor $6000.00 CDN. 

We were asked recently about handling a Thai estate. Given that the deceased was a Thailand resident, I would expect that this application would take about a year to obtain and that there would be several packages that would need to be couriered between our respective countries to get the appropriate signatures. 

By way of background, Thailand has to very different rules when it comes to the probate of an estate and cannot easily be resealed...

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What is a co-decision making order?

On October 30, 2009, the Alberta Government passed the Adult Guardianship and Trusteeship Act (AGTA). This act replaced the antiquated Dependent Adult Act. The AGTA provides decision-making options for health care providers, physicians, patients and their families to use to ensure that they have consent for health care. With the creation of the AGTA, the Alberta Government regulated the use of new forms. 

The AGTA also brought in the concept of Co-Decision making. Co-Decision making is a less intrusive means then full guardianship and applies when an adult needs formalized support but still has some capacity to participate in decision-making. These orders come into play if an adult is assessed as having a significant impairment but can make decisions about personal matters with assistance. To obtain this order, the assisted adult must consent to the co-decision-making order. This option works well for people with long-standing, trusting relationships. 

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What is the criteria for medical assistance in dying?

demise personal directive Feb 12, 2020

Since June 2017 Medical Assistance in Dying has been legal in Alberta.

On June 17, 2016, the Federal parliament in Ottawa passed an Act that amended the Criminal Code so that Medical Assistance in Dying is permitted in Canada. This change occurred because by the Supreme Court of Canada's decision in Carter v. Canada (Carter 2015) https://www.justice.gc.ca/eng/rp-pr/other-autre/ad-am/p1.html. which permitted physician-assisted death. In the 2016 act, this was amended to medical assistance in dying to reflect that it is not solely physicians who are involved in providing the service.

There are a number of stages that you must go through to receive medical assistance in dying. 

  1. Stage 1- Pre-Contemplation - you begin seeking information and reflecting on this option with family and friends.
  2. Stage 2- Contemplation - you might make an informal or formal request for information or meet with your physician, and learn all options available for your medical...
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Does Alberta have a will registry?

miscellaneous wills Feb 05, 2020

Currently, there is no mandatory will registry in Alberta. There are a couple of organizations trying to make a wills registry in our Province. Two that I know of are:

  1. Registry agents virtual vault - https://registryagents.com/alberta-virtual-vault
  2. Wills registry - https://www.noticeconnect.com/how-it-works/canadawillregistry/

There is a registry in British Columbia. If you are looking for a will in that province take a look at BC Wills Registry.

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