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Berkelhammer v. Berkelhammer Estate and Rule 7.02(1.1)(b)

The Attorney For Property shall act as Litigation Guardian Unless…

Rule 7.02(1.1)(b) of the RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 provides that unless a court orders otherwise an attorney for property shall act as litigation guardian for a person under disability. This is understood to be a presumptive, but not conclusive, entitlement. Our review of Berkelhammer v. Berkelhammer Estate focuses on what, in this case, the court considered in exercising its discretion to remove the attorney for property in favour of the Public Guardian and Trustee.
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retracting disclaimer of gift

Retraction of Gift Disclaimer – There’s a Ketch

The Superior Court decision in Rubner v. Bistricer quoted from earlier case law and texts stating that: ““The law certainly is not so absurd as to force a man to take an estate against his will.” There is no authority to the effect that the disclaimer must take place in a court of record; it may be made by deed, or even by conduct. Prima facie, the disclaimer operates from the time of the testator's death and makes the gift void for certain purposes ab initio.” So we know that people can say no to a bequest - but what if they change their mind?
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dnr order

Are Doctors above the Law?  The case of Wawrzyniak v. Livingstone

In the Wawrzyniak decision, the elderly patient was suffering from numerous illnesses including gangrene. Both his legs were amputated above the knee. The patient’s daughter, his attorney for personal care, was also a nurse. It was clear to everyone involved that both the patient and the attorney for personal care wanted CPR to be administered in the case of a cardiac or respiratory arrest. But it didn’t happen. Why not?
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Case Conference for Capacity Assessment

The Case Conference: A Powerful Tool For Efficiency in Guardianship Applications

When an application, including an application for guardianship of an incapable person’s care and property, is brought, there are several steps that need to be taken before the application can be heard and decided by a judge. These steps include filing of application materials, cross-examinations, potentially mediation, the appointment of a neutral lawyer to protect the interests of the person whose capacity is in issue,  and preparation of written arguments. Motions may also need to be brought along the way to compel production of documents, stop inappropriate conduct, etc. These steps can be time consuming.
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joint tenant common

Joint Tenancies, Spouses and Estates

Can a person sever a joint tenancy and thereby disentitle a spouse from receiving half of the matrimonial home by right of survivorship?  The answer is maybe. The starting point for our discussion is Part II of the Family Law Act (“FLA”).
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Do the Designated Beneficiaries of the RRSP Pay The Tax?

Mediating estate disputes often involves determining who gets proceeds from the deceased’s registered retirement savings plan or registered retirement income fund (“RRSP/RRIF”), and who pays the taxes on that RRSP/RRIF. A key factor during the negotiations at mediation is how a judge would decide this issue were the matter to come before a court. In other words, what does the law say?
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owners manual power of attorney

Powers of Attorney – where is the owner’s manual?

Usually, lawyers who draft wills for their clients also prepare a power of attorney for property and personal care. These documents allow the client to choose who makes financial decisions or personal care decisions should the client become incapable. The person whose property is being managed and who signs the power of attorney is called the grantor. The person who is appointed to manage the property or make decisions about personal care (referred to, respectively, as the attorney for property or attorney for personal care) sometimes only sees the document after the grantor becomes incapable. Problems often arise because the attorney does not know what the responsibilities and duties are. If only the document came with an instruction booklet.
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