Globe and Mail: Update on Rasouli Case

Posted on April 26, 2012 by Whaley Estate Litigation

Vegetative patient now able to give ‘thumbs up,’ fuelling debate over life support
By Lisa Priest
Globe and Mail, Published Tuesday, Apr. 24, 2012 10:37PM EDT

Click here to link to the article on the Globe and Mail website

Posted in In the Media

Rompsen Investment Corp. v. 617666 Canada Ltee: Time for the Courts to Catch Up?

Posted on April 19, 2012 by Ameena Sultan

As part of reasons in a motion to approve the sale of a condominium property, Justice Brown of the Superior Court of Justice used the opportunity to scold the Court`s “antiquated, wholly inadequate document management system”.

Justice Brown reiterated a specific incident of that day when documents that were required for a motion were not in the file before His Honour, and had to be sought out physically from the Court office as well as from counsel’s office, despite the fact that they had previously been filed with the Court. The documents were ultimately located and used in the motion, but the delay meant increased legal costs for the litigants.

The time has come, Justice Brown wrote, for the Court’s paper-based system to be replaced with a more efficient electronic system:

The real solution? Consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system.

The matter is serious, and the current systems for document management and scheduling, are a “scandal”, he wrote. The present “poor excuse of a system which currently is employed should be subject to relentless criticism – judicial and otherwise – until it is discarded and the people of this province are provided by the provincial government with a court administration system of a quality which they deserve.”

Interestingly, Justice Brown’s decision comes just after the Estates Division of the Superior Court of Justice discontinued an electronic scheduling system that had significantly streamlined the scheduling process.

Justice Brown’s words are harsh, however as a judge he is best-placed to highlight the seriousness of the problem and emphasize the importance of a court system that is well-managed and responsive to its users and the public at large.

To read the Reasons for Decision, please click here:
Romspen Investment Corp. v. 6176666 Canada Ltée., 2012 ONSC 1727 (CanLII)

Posted in Case Commentary

What Wishes Should a Power of Attorney for Personal Care Express?

Posted on April 5, 2012 by Mark Handelman

April 16th is National Advance Care Planning Day

One of the most vexing problems a person can face is making an “end of life” decision for a loved one with no information about that person’s values, beliefs or wishes.

In Ontario, the law requires a substitute decision-maker (“SDM”) to make those decisions in accordance with the incapable patient’s previously expressed capable wishes applicable to the circumstances (unless those wishes are impossible to comply with). If no such wishes are known, then the decision must be made in accordance with the person’s values, beliefs and best interests.

However, whether or not the person has a Power of Attorney for Personal Care, SDMs frequently have no idea what the patient’s wishes, values or beliefs are — and the patient can no longer express them. Or, the POA expresses wishes, but they’ve never been discussed between the patient and the Attorney. The result, not infrequently, is the torment of having to make an irreversible decision with inadequate information, frequently with the consequence that the SDMs demand that treatment continue far beyond the point in time at which the patient would have preferred to be allowed to die with his or her remaining dignity.

There are at least four fulcrums at which these sad stories can be avoided: in a lawyer’s office; in discussions between patient and doctor; at the instance of the patient, and; at the instance of the patients loved ones.

(more…)

Posted in Articles & Presentations

Kimberly Quoted in Succession Planning: The Bottom Line / Lawyers Weekly

Posted on March 30, 2012 by admin

Succession Planning: The Bottom Line / Lawyers Weekly Volume 2, Number 1, 2012 is now out.

Kimberly A. Whaley is quoted in the article ‘Hit One Out of the Park, Team Starts with Lawyer, Accountant’ by Grant Cameron.

Brief excerpt:

When picking a team to help them prepare and execute a succession plan, business owners should think like baseball managers: They need to acquire people with specialized talents who can work together. That’s the consensus of those who regularly deal with estate planning and business succession litigation matters.

While planning and preparation are important elements of any succession planning venture, assembling the right roster appears equally important — whether a business owner is preparing to hand over the company to a family member or sell it,
be it to management or a third party.

So who do business owners need to recruit?

Click here to read the full article online.

Posted in Publications | Tagged , ,

NAELA Annual Conference: Seattle, April 26-28, 2012

Posted on March 21, 2012 by admin

The NAELA Annual Conference will be held in Seattle, Washington April 26-28. It will provide professionals an opportunity to learn, network, and engage with other lawyers within the elder law field.

More than 250 professionals from the USA and Canada will converge to learn from cutting-edge Continuing Legal Education programs designed to showcase latest developments in an elder law practice.

Canadian Speakers Include:

Archie Rabinowitz, Fraser Milner
Kimberly A. Whaley, Whaley Estate Litigation
Panel Discussion: Jurisdictional issues related to incapable persons residing/visiting in both the USA and Canada:

  • Identifying legislative differences
  • Guardians, Attorneys and Cross-border Issues
  • Conflicts of Law
  • Addressing issues where an incapable person has assets—both in the US and in Canada
  • What happens when powers are abused and the incapable person is at risk?
  • In what forum does resolution take place? [ie. US resident (who is a Canadian Citizen) taken to Canada and not returned to jurisdiction of residency.]

Ian Hull, Hull & Hull LLP
Jasmine Sweatman, Sweatman Law
Kimberly A. Whaley, Whaley Estate Litigation
Panel Discussion: Legal and Medical Issues concerning Capacity and Substitute Decision-making:

  • What is Capacity vs. Incapacity?
  • What type of decisional capacity concerns prevail and are relevant?
  • Ascertaining capacity:
    • When is it necessary?
    • What are the implications, both for the person and process of the findings of Assessors?
    • Qualifications of Assessors
    • Policy concerns
    • Common International difficulties and models of resolution
    • What works and what does not?
    • What happens in Canadian Provinces regarding capacity and substitute decision-making

Rachel Blumenfeld, Miller Thompson LLP
Cross Border Planning: US Citizens in Canada and Americans with family members in Canada — opportunities and risks. Canadians with property and/or kids in the US; and Canadian Family Estate Planning with US Family Members — Tips and Traps.

Jan Goddard, Jan Goddard and Associates
Laura Watts, Elder Concepts
Panel Discussion: Introduction to International Elder Law

  • Focusing on Canada, this session will address:
  • The Canadian elder law landscape
  • Practical tips and planning traps
  • Emerging international elder law issues

Peter Schmiedel, Fischel & Kahn, Ltd.
Heather Mountford, Jan Goddard and Associates
Panel Discussion: Following the Money: A Cross Border Case of Fraud and Recovery.
This session will discuss:

  • How counsel from different jurisdictions can assist each other in the pursuit of remedies on behalf of mutual cognitively impaired clients;
  • Issues arising in the enforcement of a foreign judgment in Canada; and
  • A case study of Henry v. Zawierucha et al. — an example of the legal remedies available to protect cognitively impaired adults from exploitation in Illinois, and the legal remedies utilized in Ontario to enforce the Illinois judgment.

The NAELA conference will also provide opportunities to network with other lawyers and with exhibitors showcasing the latest products and services.

NAELA is dedicating the entire day of April 25, 2012 for a Basics Workshop tailored to provide an understanding of Elder and Special Needs Law. This workshop will be open to any Elder and Special Needs Law professional.

Registration Info

Conference Brochure

NAELA Website

Posted in Events

Book Review: ‘The Living End, A Memoir of Forgetting and Forgiving’, Robert Leleux

Posted on March 19, 2012 by Kimberly A. Whaley

“The Living End, A memoir of Forgetting and Forgiving” by Robert Leleux is published by St. Martin’s Press In New York.

Robert Leleux relates what is lost and found in his grandmother’s life with Alzheimer’s. For families who are living with the suffering of Alzheimer’s, this lovely human story will share both understanding and inspiration.

Sharing from the beach in the Caribbean, I found this book so enjoyable and insightful in relating to the many situations I find my clients enduring with their loved one’s.

Leleux writes of his experience with JoAnn his gran and ” going along” with the evolving reality of a person with Alzheimer’s- a form of behavioural therapy called ” habilitation.” JoAnn’s husband calling it ” painting the roses read.” Habilitation as distinguished against “reality orientation” where it was once thought that you should correct the thinking of the person and re-orient with reality.

Leleux writes of his struggles to make peace with the way society treats the elderly…..the disregard, disrespect, patronising, condescending ways of robbing a person of humanity.

Leleux: ” I’ve always been a person to whom “forgive and forget” has seemed absurdly unworkable. Though I’m not so arrogant as to presume to edit scripture, since witnessing my grandmother’s alzheimer’s, I’ve begun to wonder whether a small reversal wouldn’t better suit humanity. Maybe it would be more practical if forgetting preceded forgiving. Maybe happiness would be more easily achieved if we all made a practice of forgetting. ”

Click here to find out more or buy the book on Amazon

Posted in Publications | Tagged