Estates & Wills & Trusts

Conscientiousness rewarded in recent case

By Paul Russell, AdvocateDaily.com Contributor

Applications to pass accounts and be compensated for acting as power of attorney can win the court’s approval — and even its praise — if everything is done properly, says Toronto wills and estates lawyer Elinor Shinehoft.

As an example, Shinehoft, principal of Shinehoft Law, points to a recent Ontario Superior Court of Justice decision where a couple who cared for elderly neighbours for well over 20 years was awarded more than $757,000 in compensation.

“The judge was very clear that the award was proportional to the service they carried out for this couple,” she tells AdvocateDaily.com. “More importantly, the partner who was still alive and under care indicated that she supported the proposed compensation.”

According to court documents, the compensation was approved in a letter given to the attorney of the elderly woman — who was then living in an assisted-care facility and described as being “mentally sharp.” The letter said the money was reasonable considering the younger couple’s “ongoing commitment, time and devotion expended to ensure that the needs and wishes of my late husband and myself were attended to in the most compassionate and attentive manner.”

“It’s obvious that they are exceptional people who took their position seriously and helped the older couple immeasurably,” Shinehoft says.

“The degree of assistance and care went far beyond what anyone would reasonably expect from a friend and neighbour,” the judgment states. “In many ways, [they] acted like loyal and dutiful family members. Throughout their years’ of service, [they] never asked for or took a penny.”

It was only at the widow's suggestion that they brought the application. Court documents show they looked after the couple’s banking, household repairs and grocery shopping, and as the elderly couple’s health declined, they drove them to a variety of medical and other appointments and assisted with purchasing medical equipment required to support independent living.

In 2011, the younger couple became powers of attorney for property and personal care for the older pair.

“They also met with the couple’s financial adviser, and kept meticulous records,” says Shinehoft. “The fact that they kept track of everything and did the records so well was one of the main reasons that there wasn’t any issue with them asking for compensation.”

She says it’s common for wills and power of attorney statements to urge caregivers to apply for compensation for their services, with the amount governed by tariffs set out in the regulations.

“Since these tariffs tend to change over time, and since no one knows when death will occur and the compensation paid, sometimes it could be unfair to specify a fixed amount in the documentation,” Shinehoft says.

The judgment notes that the two elderly people were “high net worth individuals. [He] had a penchant for wise investing and amassed a significant portfolio.”

While the younger couple received significant compensation, the judgment notes the “formula for compensation under a Power of Attorney for property is fixed by statute and regulation.”

On a human level, the judge said they went above and beyond in caring for the older couple.

“When I assess the range of services provided over the number of years indicated, in the context of [the husband’s] financial means and the impact that those services had in terms of [his] independence and dignity, I have no hesitation concluding that the amount sought is reasonable and proportionate in the circumstances,” court documents state.

In its opening sentence, the judgment refers to this case as a “good news story,” an assessment Shinehoft endorses.

“This truly was a good news story, because the caregivers took their job seriously, and did everything legitimately, with absolutely no abuse or self-interest,” she says.

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