Advanced Care Planning: Your Doctor is Key


Written on March 3, 2015 – 5:27 am | by Audrey Miller

Last weekend I was having coffee with a friend who is having surgery in the near future. She asked what I knew about Advanced Care Planning and asked me whether she thought her lawyer could assist. I did not hesitate to say that this is a very complex issue and while legal documentation is needed, I believe the first person to approach is the family doctor.

In our day to day travels, while many of us read blogs, posts and articles, for any particular subject, it is only when the time is upon us, that many of us choose to act. In this case, it was about completing her Advanced Directives. As readers know, this is a favorite topic for me:
End of Life Discussion- October 8, 2014
Personal Care, Part 1/2 - June 9, 2014
Advanced Care Matters- Alberta Style – May 5, 2014
Death and Dying, The Canadian Perspective – Nov 15, 2013
Personal Care POA – Oct 22, 2013
Family Conflict, Part 2, Some Ways To Move Forward- Oct 6, 2011

The Canadian Hospice Palliative Care Association has a terrific website that provides extensive information on understanding what Advance Care Planning is and how to make a plan. It includes steps including: when to start thinking about it; learning about end of life care options and procedures; choosing who to appoint; terms and definitions; involving others; documenting your wishes and, as well, providing answers to many commonly asked questions.
Doctors are being given additional tools.

The i-GAP (Improving advance care planning in general practice) is a research project intended to increase the participation of doctors in discussing this with their patients. Participating doctors will have access to new tools and as I understand it, learn ways to improve communication with their patients and their families in discussing and addressing their key medical issues and questions.

In addition, Carenet (Canadian Researchers at the End of Life Network) is a group of health care professionals across the country working together to improve end of life care and are completing research on primary care, acute care, long term care, critical care and cancer care.

What doctors may not have is the necessary time to sit down, discuss and review and review again, the many questions that patients have. I also don’t know if/how their time is covered by the Ministry Health Insurance Plan. I hope my friend reads this blog. I look forward to your comments and to hear about your experiences.

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    What to do about unusual personal effects


    Written on March 2, 2015 – 6:00 am | by Jasmine Sweatman

    Elaine’s blog on Friday talked about personal items and the need for testators to deal with them in their Will. But what happens when some of those personal effects are unusual, unsuitable, “ungiftable” or difficult to dispose of?

    This “typical” instruction may not be sufficient in all situations – regulated or high value items should be given more thought when planning as they require more effort for the executor to distribute (or dispose of) them properly. Two examples are: wine collections and firearms, although there could be a multitude of other interesting items.

    For some estates, wine can be just as valuable or as personal as the “traditional” personal items–but it can also end up being difficult to distribute.  When a wine collector dies, the collection can be very valuable, and if the collection is not specifically dealt with in the Will, the issue becomes: how does an estate trustee realize this value for the beneficiaries?  Since the government controls the “private sale” of alcohol, how do you sell the contents of a wine collection while remaining on the right side of the law?

    Wine collections can be donated to a charitable organization to auction. The wine is appraised by an appraiser approved by CRA, who values the wine and once donated the estate receives a tax receipt in the amount of the valuation (not the actual amount the wine is sold for).

    If the estate trustee would rather realize the value of the wine, the LCBO (Vintages) holds an annual fine wine auction, which in Fall 2013 sold $2.4 million of the finest vintage wine.  The LCBO, however, can be selective, and is not obliged to take all (or any) wine from a collection for the auction.  Another option is to conduct a private wine auction through a specialized company.  This option can be complicated logistically, requiring the wine to be catalogued, appraised, photographed, transported, placed into lots, and stored in a temperature and humidity controlled, high-security vault.

    Some testators own firearms, and dealing with this can prove difficult at times for an estate trustee.  If the testator had put some thought to the practicalities in advance, it can be helpful.  For instance: did the testator speak with a specific beneficiary about receiving a firearm?  Does the beneficiary want the firearm? If yes, should it be gifted during the testator’s lifetime?  If a specific beneficiary wants to receive a firearm, consideration needs to be given as to whether he or she holds a firearms licence (which is required to receive/own a firearm).  What if the intended beneficiary is a minor? Testators should provide direction to their executors as to how to transfer or dispose of the firearms.

    When planning an estate, consideration and attention should be paid to the practicalities of distributing/disposing of these kinds of “unusual” items to avoid causing unnecessary problems and delay in administering the estate.

    Until next time,

    Leigh Sands/Cheryl Cheung

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      Distributing the “stuff”


      Written on February 27, 2015 – 5:28 am | by Elaine Blades

      I recently listed “improperly dealing with personal effects” as one of the top 10 mistakes executors make. This prompted feedback from a couple of readers who asked me “how should personal effects be dealt with in a Will?”.
      While there is no one right or best way to deal with personal effects, sound planning coupled with proper administration can help ensure personal effects are given the consideration they deserve and distributed in accordance with the testator’s wishes.

      All too often, personal effects are overlooked or given short shrift at the planning stage with more lucrative assets such as investments and real property getting all the attention. For most people, their personal effects will indeed represent a small portion of their estates in terms of monetary value. However, as any estate planner will tell you, because it’s impossible to monetize sentimental value, personal effects can prove finicky to deal with.  And, as any estate litigator will tell you, personal effects often punch well above their weight in terms of their importance to beneficiaries. As this Forbes article puts it “little things can cause big fights”.  A recent example may be found in the fight between the widow and children of the late Robin Williams as described in a recent CTV article.

      In an effort to ensure the testator’s wishes are respected and the potential for disappointment and disagreements down the road minimized, estate planners are encouraged to review the main options for distributing personal effects with their clients. Options include:

      1. choosing to not specifically address in which case personal property will form part of the residue of the estate
      2. bequeathing particular items in the Will to one or more beneficiaries
      3. detailing a scheme of distribution (for example, “to divide my (remaining) personal property among those of my children alive at my death, in such manner as they may agree upon, or, failing agreement, in such manner as my Trustees in their absolute discretion consider equitable”
      4. preparing a precatory (non-binding) memorandum detailing your wishes
      5. preparing a binding memorandum
      6. a combination of the above. For instance, making a couple of specific bequests (wedding and engagement rings to daughter; Breitling watch to son) coupled with an instruction to divide the balance of  the effects between the children.

      Where a testator’s personalty includes unique or special items such as antiques or collections, additional concerns may come into play, including:  income tax considerations; equalization considerations where the value of a collection depends on keeping it whole; how best to value and perhaps ultimately sell the property.  Depending on the location of the beneficiaries and the nature of the property (a baby grand piano, for instance), it may be prudent to set out who is to bear the costs of insurance or shipping –  the beneficiary or the estate?. 

      Of course, even with the most thoughtful and thorough plan in place, fights can still erupt when it comes time to distribute the estate. More often than not, these spats are the result of what I consider to be the most common mistake executors make: that is, ignoring all that good planning by improperly interpreting, or not properly following, the terms of the Will.

      Thanks for reading.

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