As the second installment in our mini series on wills & estates, we will review some of the basic legal principles about powers of attorney in Ontario, why they are important and how they fit into your overall estate plan.
A will is only effective from the date of the death of the testator. People however often need assistance in managing their “estate” (their property) or their personal care while they are alive if they are unable to do so themselves. This could be because of mental infirmity or because of an accident or physical limitations.
Therefore it has become customary when making a will to also prepare two power of attorney documents in order to have a complete estate plan in place. There is a Power of Attorney for Property and a separate one called a Power of Attorney for Personal Care. These documents give the “Grantor’s” power or authority to the appointed person(s), the “Attorney”, to manage his/her affairs and property and to make care decisions such as giving legally binding consent
Subrule 13(6) of Ontario’s Family Law Rules states that any party serving a financial statement must make “full and frank disclosure of the party’s financial situation.” Financial statements must also be fully complete and submitted with supporting documentation.
Despite the fact that full and accurate disclosure from both sides is an essential component to the swift resolution of virtually any family law matter, the rule can sometimes be loosely adhered to or disregarded in its entirety by litigants.
As the following case illustrates, a failure to make open and honest disclosure can lead to extreme delays, inflated legal costs and a very undesirable outcome for the party failing to disclose.
In Oelbaum v. Oelbaum, 2010 ONSC 4874 (CanLII), a husband and wife separated after 22 years of marriage. The litigation began in October of 1996. Throughout the 14 years of litigation, the husband refused to provide meaningful financial disclosure.
Although having been warned that not making disclosure would lead to his Answer being struck, the husband continued to disregard the rules. His Answer was eventually stuck,