In October, BullyFreeBC is posting articles advocating
law reform to address concerns for seniors in BC.
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For several years I have been researching the legal framework for wills and estates in BC as a reluctant experiential learner. My mother died in 2015, and since then the family has been going through an odyssey of negotiations and court dates to settle her small estate, administered according to a Will that was written under a previous legal framework and probated under new and improved legislation.
At the conclusion of this long process, problems are still not resolved and the beneficiaries are finding that not much remains now that the self-governing professionals in charge of the estate have taken their fees.
And settlement of the estate was the last stage of many after more than a decade of legal planning difficulties for our family that started with a weird Power of Attorney package and then a Representation Agreement signed after several incapacity diagnoses. All of these documents were prepared for a frail and easily confused older client by lawyers specializing in the field of elder law.
The new legislation for elders and estates law, crafted to address such difficulties, has been in effect since April 2014 when the BC government passed the Wills, Estates and Succession Act [SBC 2009, Chapter 13], known as WESA. Enactment of WESA brought sweeping changes to an estate planning and administration framework that had been in place for decades. Several older Acts disappeared with WESA, including the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act, and the new legislation required amendments to more than 40 other Acts.
But from ongoing discussions with people in the demographic of older adult children with increasingly vulnerable parents, it seems many families are finding that the legal framework in BC, despite changes introduced by WESA, still does not serve or protect the human rights of seniors. Problems include lack of good legal and care decisions for seniors, financial needs of family members improperly addressed while the estate is in the hands of one elderly spouse who survives the other, then wastage in the course of maintenance, consolidation, administration and distribution of the final estate when both parents are gone.
The situation is particularly worrisome in BC given the generation of land-owning seniors who hold wealth in equity and who might have more than one generation of cash-strapped offspring waiting impatiently to access the assets. This province could be facing a crisis of financial elder abuse as part of borderline estate fraud, as problems emerge like ticking time bombs placed in packages of badly devised personal planning documents for BC seniors with estates to pass on when they do.
The decisions involved in creating these legal planning documents are critically important to each person and family. But this is generally not understood or appreciated by the client, who might have no other contact with legal paperwork. Easy mistakes like appointing the wrong person as a substitute decision maker, giving that person too much authority with no oversight and remedy, or creating too much latitude for the trustees of an estate – these decisions and choices made quickly and perhaps under time pressure during a legal appointment can change the fate and fortunes of a family forever.
People need to understand that they could be determining the quality of the last years of their life and perhaps their right to life when they sign on the line in a lawyer’s office, or even worse on the last page of a form from the printer.
The professionals in charge of these arrangements – the financial and legal professionals who manage the wills and estate business in BC – have no stake in the decisions made, so long as the documents resulting are properly prepared and signed. From their perspective, any estate plan is a good plan so long as it can be legally enforced in a court of law, and doesn’t use online forms.
This lack of human rights oversight on elder and estates law needs to change, in order to reduce the opportunities for fraud and to protect against abuses of elderly people and their property.
And the risk has increased with the new June 2016 physician-assisted dying legislation in Canada [link to Bill C-14 Royal Assent] introducing the possibility of seniors being encouraged or persuaded to ask for an assisted death. The conflicts of interest and temptations for beneficiaries created by assisted dying legislation could increase further if a current campaign succeeds in allowing alternative decision makers, who might possibly inherit under a Will, to make this most final of decisions for another person.
These gaps and snares in the legal framework must be fixed through law reform, because the current state of elder and estates law in BC creates too many opportunities for abuse, not only of property but more critically, of the rights, well-being and safety of people entering the final and most vulnerable phase of their lives.