Dependent Relief Applications
Capacity Issues and Guardianship
Passing of Accounts
Representing With Respect
Elder abuse is on the rise: not just physical abuse, which is best dealt with by the police, but financial as well. Often those closest to the victims are the perpetrators of the abuse. We often see caregivers, family members and financial advisors unduly influence and abuse seniors. Abusers prevail upon the vulnerable and take advantage of positions of trust, imposing their own agendas to the detriment of the elder. There are many recognizable indicia of abusive situations known to litigation counsel. There are also many legal proceedings that can be employed to terminate the abuse and provide remedies for losses incurred.
For the last decade or so we have seen vast amounts of wealth pass from generation to generation. This will continue into the next generation as the baby boomers pass and generation X and millennials come into position for an inheritance. These days family units are more complicated than in earlier generations. Many people marry more than once in a lifetime and have children with different spouses. Non traditional family units are also more common than ever before. This gives rise to many new combinations for estate disputes. Litigation can arise between and among siblings whether within a marriage or across second and third marriages; common law spouses may find themselves in litigation with a surviving legal spouse; and same sex partners may land up litigating with the deceased’s former heterosexual partner. This is just a few of the many and varied cases that may lead to a will challenge.
DEPENDENT RELIEF APPLICATIONS
Dependent Relief applications are brought when a legal dependent is not adequately provided for in a Last Will and Testament. These are powerful proceedings that can supersede the instructions of the testator. The dependent relief legislation grants the Court enormously wide remedial powers to fashion endless ways to right the wrong created in the deceased’s Will. These remedies include, but are not limited to, payments of money, possession of real property, sale of assets and imposition of trusts.
CAPACITY ISSUES AND GUARDIANSHIP APPLICATIONS
Representing With Respect
When is a person considered to be incapable of managing their own property and/or personal care? This is indeed a challenging question requiring the review of medical, personal, financial and legal evidence. If a person is found incapable, then another person or persons must step into the place of the incapable in to make decisions for him or her. Unless attorneys have been appointed under properly prepared and executed powers of attorney, these matters must be sorted out in a guardianship application.
PASSING OF ACCOUNTS
Accountability for Management of the Estate
Proper accounts must be maintained by attorneys appointed under a power of attorney for property, guardians of property and trustees or estate trustees named under a Will or trust. This is a fundamental obligation and carries enormous responsibilities of record keeping and presentation. Anyone with a legally recognized interests in the accounts is entitled to ask that they be brought before the court for review and approval. This process is called a ‘passing of accounts’. It is an extremely effective manner to call persons before the court to answer for their management of an estate. During the course of the passing, objections to the accounts are made and the court determines the propriety of the management if and when matters cannot be resolved by the interested parties.