Ask the lady lawyer! This week: Estate planning

by Tannis on April 30, 2009

in Advocacy

Every Thursday, Confabulous’ resident lawyer Tannis A. Waugh discusses the most interesting legal issues emerging in popular culture and addresses your burning law-related queries. Want to contest a parking ticket? Can’t help you. Got a legal question for our in-house LLB? Drop her a line at tannis [at] confabulous [dot] ca. Note: Nothing in this column constitutes legal advice in any jurisdiction and is for information and discussion purposes only.  If you have a legal problem, consult a lawyer in your jurisdiction immediately.

Last week, I talked about equal marriage and some of the questions and controversies that surround it (although, personally, I can see no controversy in the equal application of human rights) and it got me thinking about other issues related to it, like estate planning. Certainly estate planning is not an issue that only affects same-sex couples. However, in my practice, I’m often amazed at how uninformed people are about what happens when they become ill or die with our without an estate plan in place. This is especially true for the difference between those who are legally married or not.

Q: What is an estate plan, exactly?

A: An estate plan refers to the documents one sets out to be administered either when one is ill, has passed away or, in the cases of some powers of attorney (POAs), when one is simply unavailable (I am including POAs in the definition of estate plan because they are just as important as a will). [Ed. note: Or just as important as a Wii?]

A will sets out what is going to happen to your property on death, any funeral requirements you want, the guardians for any minor children and how your estate is to be administered upon your death.

In Ontario, there are two kinds of POA: one for property (that includes real estate, investments, bank accounts, etc.) and one for medical decisions. You give the power to someone to make those decisions for you. For the sake of brevity (and liability–I am a lawyer, after all), I won’t get into the specifics of when and how they are used because this varies from jurisdiction to jurisdiction.

Q: I’m single and I don’t have that much stuff and I don’t really care who gets it. Why would I possibly need a will and powers of attorney?

A: Common question. The bigger issue here is the power of attorney situation. Consider the tragic event of a car accident where one is not able to make decisions on one’s own behalf. If you are okay with your family making these decisions for you (i.e. to continue life support or not), then it may not be a problem. But consider the incapacitated person with two parents, one staunchly religious and insistent that life support be continued no matter what the circumstances and the other parent staunchly opposed to that and insistent on “pulling the plug” (crass, I know, but you get the idea).

By not having a power of attorney and setting out your wishes, you can put your loved ones in a terrible position, having to make that decision. In some families, this may not be a concern and some people appoint the decision maker(s) in their POAs but leave the actual instructions blank, meaning that the person(s) appointed will make the decisions based on what they think is best.

The other issue–and this is how estate planning ties into marriage–is that of common law couples vs. married couples. A lot of people don’t realize this, but being common law doesn’t entitle you to any estate rights. That means that you are not the de facto decision maker if your partner becomes ill. In fact, all too often in these tragic cases, family can swoop in, make all of the medical decisions and completely cut out the partner. As a common law spouse, you have absolutely no rights to even be included in the medical decisions.

Also, think of the terrible situation where an old power of attorney for property is in existence that names the family and not the partner. And the situation where the home that both parties live in is owned solely by the incapacitated partner and the family locks out the partner. And the list of potentially crappy situations–that really do happen to people–goes on and on. Kind of like what happened to Sharon Kowalski (which is also here) and more recently, Robert Daniel.

These are just two examples of why you need to get your legal house in order. The only way that you can truly know your rights and protect yourself is to seek legal advice and resources within your particular jurisdiction. Of course, with married couples, the spouse is the de facto decision maker–yet another reason why equal marriage is so bloody important, whether you’re gay, straight, bisexual, lesbian, transgendered or two-spirited.

Q: How do we deal with guardianship issues for my child but who is not actually a biological child?

A: Gah. That’s a complicated one, mostly because is law is vastly different from jurisdiction to jurisdiction, straight or gay. This is something you really really need to investigate to see what the rules are where you live.

In Ontario, same-sex couples can both be considered the parents of a child. I’m not a family lawyer, but I think it used to be done by declarations of parentage. I believe there is some other process now [Ed. note: do any same-sex parents have the goods on the answer to this? Let us know!]. The non-bio-parent isn’t going to have a problem with maintaining the right to raise their child in Ontario, but this can be a big problem elsewhere.  If you are interested in more information about this, let me know, and I’ll research and write a blog post about it.

Q: I’m really wealthy and my spouse is a bit of a gold digger. I’ve decided not to leave them anything in my will.

A: Well, my friend, I think you need to re-evaluate your relationship, but this does touch upon some interesting issues. For example, if you live in Ontario and you are legally married, you have an obligation to provide for your spouse in your will–full stop. That’s right, you read that correctly:  YOU HAVE AN OBLIGATION TO PROVIDE FOR YOUR SPOUSE IN YOUR WILL. If you don’t, the surviving spouse can treat the death of the other like a separation and seek an equalization of net family property under the Family Law Act. Or the spouse can take their preferential share under the estate legislation (which also provides for children and is only used when there is no will).

If you are common law, you are out of luck. Seriously. I can’t tell you how disheartening it is to have someone come in to my office and tell me they are a common law spouse, same-sex or heterosexual, and how I simply can’t help them (unless, in the rare exception, the deceased spouse was supporting the surviving spouse in which a claim for support can be made against the estate).

Also, for people living in Ontario: If you get married, your will ceases to exist unless it was done in contemplation of marriage, i.e. it says right in the will that the will has been done in contemplation of marriage. A lot of people don’t realize this and it can have some unfortunate and unintended consequences.

We’re all going to kick the bucket one day, and many of us have loved ones we want to protect. Have you sorted out your estate plan?

Any statements here about the current state of the law are in reference to Ontario, Canada and do not necessarily represent the state of the law in other jurisdictions. Estate law is wildly different from jurisdiction to jurisdiction and it’s important than anyone one needing estate advice should immediately seek the advice of a lawyer in their jurisdiction. Nothing in this column is legal advice, only legal information and is for the purposes of discussion only.

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