Power of Attorney or a Committeeship

By Committeeship, Power of Attorney

People often ask the question: “Do I need to get a power of attorney or a committeeship for my loved one?” While the two documents, and powers that they grant, look similar, there are many important differences, and often the situation that you are in will be what determines which one is needed.

 

A Power of Attorney is a document signed by a person that gives authority to another person to manage some or all of that person’s affairs (although it is important to note that it does not remove the ability of the person signing it to manage their own affairs – it just appoints a “helper”). They are often, but not always, used to guard against later-in-life inability to manage one’s affairs whether due to dementia, physical incapability, or simply because it’s easier to have a loved one take care of day-to-day tasks. They need to be made while a person is still competent to make decisions, and are typically drawn up by a lawyer because, unlike a will, powers of attorney can only be witnessed by people in certain professions, with “lawyer” being the most common one. They are often made at the same time as a Will, but unlike a Will, a power of attorney is only valid while the person who made it is still alive, where a Will is only in effect after a person dies.

 

A Committeeship has some similarities and some differences. Like a power of attorney, a committeeship gives another person the ability to manage some of a person’s affairs while that person is still alive. The main difference is that a committeeship is a judge-made court order and they are only issued after someone has lost the ability to manage their own affairs. Because of this, they require sworn affidavits from physicians that the person can’t manage their own affairs, as well as a court appearance before a judge (although typically there is no need for witnesses to be called). This makes committeeships significantly more expensive to obtain than making a power of attorney in the first place – often thousands of dollars – although if the person no longer has the mental capacity to make a power of attorney then it may be the only option for a family member to take control of the affairs of someone.

 

There are some other differences as well: Most often, when we draft a power of attorney, we give as many powers as possible to the person who will be taking on the powers. With a committeeship the powers that are granted are more limited, and sometimes additional orders are required. For example, most powers of attorney are drafted with the option to allow the family member to sell the house if the person can’t live in it anymore. Under a committeeship, the house can only be sold after review of the sale by a judge, resulting in a delay on the sale and increased costs for seeking that review. A power of attorney can also name anyone (over 18, mentally competent themselves, and no an undischarged bankrupt) whereas a committeeship can only be granted to a person who is a Manitoba resident.

 

In the end, it is often far easier on everyone involved to have a power of attorney in place before it is needed. With that said, if there isn’t one in place, it’s important to know that not all is lost and that a committeeship may be an option. Please feel free to talk to us if you have any questions, and let us know if there is any way that we can help with your committeeship or power of attorney questions.

Workplace Investigation: 5 Reasons to Hire an External Investigator

By Workplace Investigations

Fair and equitable work environments in which all employees can participate and do their best work should be the goal of all employers. As part of that goal, there is a need for accountability by both employees and employers when issues arise in the workplace. That’s where a workplace investigation may be appropriate.

Some allegations of misconduct can be investigated and addressed internally, but there are many situations where employers should consider hiring an external workplace investigator. It is valuable for employers to be aware of when they are unable to handle an investigation. There is no specific list of circumstances to determine when an external investigator should be retained because every situation is unique. Below are some factors and scenarios to consider:

  1. The Allegations Are Serious

When serious allegations, such as sexual harassment or criminal conduct, are made, it is advisable to have an investigator with the necessary legal knowledge, training and expertise handle the matter.

Also, if an employee’s job is at risk, the employer should take the necessary precautions to ensure that a fair and proper investigation is undertaken and the rights of all parties are respected. An external investigator with a background in employment law has the necessary skills to make sure this is done.

  1. Impartiality in the workplace investigation

It is vital that workplace investigations be conducted by an impartial investigator with the necessary knowledge, training and expertise. You want all parties to accept and abide by the recommendations of the investigator. A necessary part of this is for the investigator to appear neutral and unbiased. Hiring an external investigator can shield the employer from claims of bias.

  1. Lack of Time and/or Resources

Conducting a proper investigation takes significant time and resources, which otherwise would be devoted to regular workplace activities. An external investigator will be able to conduct their investigation with only minimal disruptions to the day-to-day operation of the workplace.

  1. Helps to Re-build Morale

Allegations can cause a serious rift in employee relations and workplace dynamics. Employees often feel more comfortable reporting incidents when they feel that their employer takes such allegations seriously. Hiring an external investigator is a way for employers to elevate the trust and confidence their employees have in them.

  1. Prepares for and Simplifies Litigation

Similar to avoiding the spectre of bias, hiring an external investigator can safeguard the investigation against allegations of procedural unfairness. A report by an external investigator can be used as a shield against potential litigation and can be relied on by adjudicators in human rights or employment disputes. This will save all parties time and money in the long run.

For more information, please see our workplace investigations page here.

Katie Brownell is an associate at Wolseley Law LLP where she assists businesses with workplace investigations and other human resources disputes. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.

Unbundled Services – A New Approach to an Old Problem

By Family law, Unbundled

Unbundled Legal Services – A New Approach to an Old Problem

By Katie Brownell

 

Over the last decade, more and more Manitobans have started representing themselves in their legal disputes. While this has typically been the case for small claims matters, self-representation is now approaching the 50% mark for family law matters, according to statistics collected by the Department of Justice and legal unbundled services is something that people are turning to for help.

You might choose to represent yourself for a number of reasons: you feel that you cannot afford a lawyer or you do not qualify for legal aid; you cannot find a lawyer; you have been unhappy with previous experiences; you do not trust the legal system or you believe that you can do the work yourself.

The most common reason motivating people to self-represent is that hiring a lawyer is too expensive. This is something that lawyers can help fix by offering services that the majority of people can afford. Instead of the traditional billable-hour model, where legal fees are charged on an hourly rate and the lawyer handles all aspects of the case, we are starting to offer unbundled, or limited scope, services. This is where you and your legal team make an agreement to limit the scope of the lawyer’s work on the file to specific, pre-agreed tasks. It is an option that falls between no representation and full representation.

According to the National Self-Represented Litigants Project, many self-represented clients find the process of handling their own legal matter to be overwhelming and uncertain. The unbundled model gives you access to a lawyer who can help alleviate your concerns without requiring you to provide a large retainer up front.

While the unbundled services don’t make sense for all matters or all people, it can be particularly helpful when you are representing yourself in a civil or family matter where there are many specific procedures and court rules that must be followed. The big challenge for most people isn’t the actual law, it is the procedure involved. Having a good argument or a worthwhile claim doesn’t mean much if you are not able to put it into a form the courts will accept.

The impact of family litigation can be lifelong; it can affect what kind of a relationship you will have with your children and how much money you will have to support them and yourself. Making a mistake at an early stage in the process can be difficult to fix later and fixing it can cost much more than doing the right thing in the first place.

In February of 2019, the court implemented a new model for family law matters that has resulted in changes to court forms and procedure. Under the new model, there is an emphasis on exchanging materials and information at an early stage so that families can attempt to negotiate or settle as many issues as possible without the involvement of the court. Given these recent changes, it is important to make sure that the initial documents you submit to the court and exchange with the other person are in the proper form and set out the issues you are hoping to have resolved.

Hiring a lawyer on an unbundled basis is a great way to set yourself up for success. Instead of providing a lawyer with a retainer and having them control the entire file, you can seek the lawyer’s advice or assistance on particular tasks such as preparing, filing and serving a Petition for Divorce or a Statement of Claim. You can also get legal advice on one specific issue or have a lawyer look over materials you receive from the opposing party. You and your lawyer can decide on a plan that best suits your case and your budget. Once you’ve gone to a lawyer for unbundled services, you can make an appointment to go back and get further advice as problems or questions arise, which can be helpful because that lawyer is already familiar with your file.

Hiring a lawyer may not always be necessary and sometimes may not be possible. Unbundled services are an affordable and accessible alternative to help you navigate the legal system during what can be a tough or confusing time.

Out of Court Family Resolution Certificates

By Family law

Manitoba Courts have recently expressed significant concern that the courts are being used to solve family law disputes involving child custody, support, and property division. As a way to encourage the resolution of family matters outside of court, Legal Aid Manitoba, also referred to as “LAM”, has created a certificate specifically for clients with out of court resolution in mind: “Out of Court Family Resolution Certificates”. To obtain one of these certificates, both parties must qualify for legal aid and they must commit to resolving their matter using a family resolution process such as collaborative law or four- way settlement meetings. Litigation is not permitted without authorization from Legal Aid Manitoba. If the parties do not work with their lawyers to achieve out of court settlements, and elect to go to court, they run the risk of having their LAM certificate cancelled. The intent of this approach is to focus on the best interests of the children and families as well as encouraging more effective ways to settle disputers.

In order to determine if one qualifies for a certificate, LAM reviews the applicant’s complete financial situation, including income, assets (including a house or RRSPs), debts, and whether or not money will be available to pay legal fees at the end of the case. The guidelines for income threshold to be eligible for legal aid are based on gross family income and family size. The typical guidelines are as follows:

Family Size Gross Family Income
1 $23,000
2 $27,000
3 $31,000
4 $34,000
5 $37,000
6 $40,000
7+ $43,000

 

Legal Aid Manitoba will also look closely at the legal matter to determine its appropriateness for this process. Whether one qualifies for assistance is solely at the discretion of LAM.

Alternatively, LAM also offers an Agreement to Pay (ATP) Program to help applicants pay for their legal services. If someone qualifies for this program, LAM requests an initial payment be made and then ongoing, interest-free monthly payments until the cost of the legal matter has been paid in full. This can often be significantly more affordable than hiring a private lawyer. [i]

Wolseley Law LLP is now accepting Out of Court Family Resolution Certificates through LAM, as we strongly support the initiative to resolve matters outside of Court when possible. If you think you qualify for legal aid and are interested in resolving your matter outside of Court or have already applied and been approved for this certificate, we may be able to assist you. If you do not know if you qualify for assistance, we would be happy to help you with your application at our office. You can contact us at arielle@wolseleylaw.ca, through our website www.wolseleylaw.ca or by telephone at 204-977-1706.

[i] Information taken from the Legal Aid Manitoba Website: https://www.legalaid.mb.ca/financial-rules/do-i-qualify-financially/

The New Family Law Model in Manitoba

By Family law

By Leah Klassen

“The Only Constant in Life is Change”

We often hear from clients dealing with family law matters that the process is far too time consuming and costly, and we certainly can’t argue with this. Time and time again, we’ve seen how significant time and expense could have been avoided simply by the court system and lawyers alike handling the matter more effectively.

In February of 2019, a new model for the family law system was implemented in Manitoba. The intention behind this new model was to address these issues by placing significant emphasis on the proper steps being taken at the beginning of the process, encouraging timely disclosure of relevant information and, most importantly, encouraging settlement outside of court.

The majority of people seeking our assistance want their matter to be dealt with amicably, efficiently, and nowhere near a courtroom. The new model encourages this by requiring certain prerequisites to be completed before an initial court date can be scheduled. One of these prerequisites is confirmation that the parties have attempted to resolve the matter prior to going to court. These attempts can include mediation, four-way meetings between the parties and their lawyers, or even meetings between the parties themselves, (where parties don’t have lawyers themselves).

Additionally, separating parties will now have to prepare a new court-required prerequisite of a written parenting plan. This is not an official document, but rather a document that should set out, in detail, a plan for the children’s residence, schooling, contact with the both parents and family members, and any other concerns or special needs of the children. Both parents are also required to attend the “For the Sake of the Children” program, and although this is not a new requirement, it continues to be a valuable one. We find that almost every one of our clients who has attended the program has advised us how useful it has been. The combination of the new prerequisites with the former ones is meant to lead to the increase of early, out of court settlements.

Financial disclosure is often the cause of delays in the court process. Financial information provided is often late, incomplete or simply not provided at all. Income taxes, T4s and calculating your monthly expenses are all types of information that the Court requires. Anyone who has been through a family legal case, would probably agree that giving and receiving financial disclosure often poses a significant challenge. The new model has addressed the delays that often occur by requiring full financial disclosure as a prerequisite prior to an initial court date being scheduled for any matters involving support or property division. In most, if not all cases, you will be required to fill out a Form 70D Financial Statement, with income tax returns and proof of year-to-date income. Before going to see a lawyer or beginning your family legal process, it is useful to gather your last three years of income tax returns, or if that is not available, at least the last years’, as your lawyer is sure to ask for this and will be incredibly pleased if you have it ready to go!

The change to the family model applies to variations of Final Orders, Petitions and Petitions for Divorce that are contested, and property division issues. If you are interested in seeing if and how these changes apply to your circumstances, be sure to contact your lawyer to discuss. Should you be a self-represented individual, ensure that you are familiar with the new model and take note of changes to court forms, so as not to delay the resolution of your matter.

Leah Klassen is an associate at Wolseley Law LLP. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.

Travelling to the US or other countries with children

By Family law

The Canadian Bar Association has recently released, as a part of their “Legal Health Check” series, a new handout talking about what steps and paperwork should someone do if they are planning to travel internationally with a child. As a part of their handout they discuss document requirements and suggestions as well as a tips section on children travelling alone. Have a look at their PDF here: “CBA LEGAL HEALTH CHECK: TRAVELLING WITH A CHILD”

Online Assets And Your Estate

By Estates

When we think about assets to include in a will people have, for over a hundred years, been concerned about the “big 4” things: house, money, kids, and business. Modern estate planning brings many more concerns, not the least of which are digital assets.

This can encompass many, many things from website ownership or rewards points from loyalty programs through to much more cutting edge digital assets like cryptocurrencies such as Bitcoin. In most cases though, an email or social media account will be far and away the most common digital asset, full of communications, photos, and memories – many of which we consider more valuable than our simple possessions. And for the most part, people have no idea how those accounts are dealt with after we pass on.

Many of the largest email/storage/social media providers have established policies for this eventuality and I’ve detailed some of them below. This information is current as of August 1, 2017 and should be checked on the services’ sites before making plans regarding these assets.

Gmail/Google: One of Google’s little known features is called “Inactive Account Manager” which grants access to your account to someone that you designate in the event that your account has been inactive for a certain period of time. You get to choose what information they get from Gmail, Drive, Photos, etc. (or if the account should just be deleted) and can customize an email to that person explaining what you want done with the data. If you do not set up the Inactive Account Manager there is a multi-step process that, ultimately, may involve an order from a U.S. based court (as Gmail is located in the US, along with all of the other providers here) but certainly no easy path to accessing that information.

Facebook: Similar to Google, Facebook has a “Legacy Contact” feature where, on proof of death, you can designate another Facebook user to be allowed to either close your account or access a download of the things that you’ve shared within the network. It can be accessed through the general settings link on your profile.

Dropbox: Dropbox is likely the easiest service to access as they have clear procedures for accessing an account. They require that you provide your ID along with, for Manitoba purposes, a grant of probate of a will that specifically grants access to the account to the executor. Interestingly, unlike Google, they do not specify a U.S. court, though they do indicate that even with all documentation they cannot guarantee that they will be able to provide access.

Hotmail/Outlook: Microsoft’s process is more opaque. They will not grant access to the account, nor to any other Microsoft services (like OneDrive) but after a review may be able to provide “contents of a personal email account.” It requires a valid “court order” (which would presumably include a grant of probate) from the “requesting party’s jurisdiction” (such as Manitoba) and as with Dropbox it appears to require specific granting of the information in the will that is probated.

Yahoo Mail and iCloud: Both Yahoo (which also owns the photo site Flickr) and iCloud (which is the umbrella terms for everything Apple related) spell out their policies in their terms of service quite explicitly: all email and storage content, along with purchased apps and music are non-transferable and cannot be released to anyone as a privacy measure. Fortunately, for Apple users, the best way around that is to enable “Family Sharing” which gives people you designate access to your photos and purchases, if nothing else. For their part, Yahoo allows someone to at least close a loved one’s account with sufficient proof of death.

If you are named as someone’s executor and are going to attempt to use procedures like these to access someone’s account after they have passed, it is important to notify the services quickly as, usually, a period of inactivity will lead to a closing and deleting of the account and everything in it.

Ultimately, the easiest, and most sure-fire way to grant access to these accounts after you have passed is to write down the passwords and leave them with your will. It is important to note that, technically, sharing your passwords, even with your executor, is a violation of some website/service’s Terms Of Service, and that there are also risks to writing down passwords and keeping them unsecured. I would suggest that each user has to balance those risks for themselves. More to the point, one of the larger issues here is that it is often not practical to keep passwords written down as passwords, and even accounts, change over time, but if you want to be able to grant your loved ones access to your accounts, it is, in most cases, necessary.

Gerrit Theule is a partner at Wolseley Law LLP and a member of the Manitoba Bar Association’s Wills and Estates Section executive. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.