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Podcast Transcript – Powers of Attorney for Property: the Basics
Kimberly Whaley and Heather Hogan are estate litigation lawyers who often deal with Power of Attorney and End of Life issues. Today, in our podcast, they join us to educate us about some of the Ontario laws including:
- What is a Power of Attorney and what is an attorney for property?
- Are these documents used in other Provinces?
- If someone needs help paying their bills, do they need to appoint an attorney for property?
- What happens if someone loses their capacity to manage their property and they don’t have a Power of Attorney for Property executed?
- What should an older adult do if they are being pressured to execute a Power of Attorney document?
- Are joint bank accounts a good alternative to executing a Power of Attorney document?
About Kimberly Whaley and Heather Hogam
Kimberly A. Whaley, C.S., TEP., LLM
Kimberly A. Whaley is the founder and principal of the Toronto law firm, Whaley Estate Litigation. She is also a solicitor of the Supreme Court of England and Wales.
Kimberly’s firm, Whaley Estate Litigation, was ranked nationally by the Canadian Lawyer magazine in January 2013, as one of the Top 5 Trusts and Estates Boutiques in Canada.
Kimberly was inducted as a Distinguished Fellow of the Canadian Centre for Elder Law in Vancouver in 2012.
Kimberly was designated as a Certified Specialist in Estates and Trusts Law by the Law Society of Upper Canada in 2006. She has been peer rated annually since 2009 by The Best Lawyers in Canada in Estates and Trusts. Kimberly was chosen by Lawday Leading Lawyers as one of the top 60 leading lawyers in Canada in Estates and Trusts. She was given the Martindale-Hubbell – BV Distinguished Rating in both Legal Ability and Ethical Standards.
Kimberly is Past-Chair of the OBA Trusts & Estates Executive, and past member of the OBA, CLE and Institute Executives. She is currently a member of the CBA Elder Law Section Executive. She is on the Expert Advisory Group/Panel for the Law Commission of Ontario’s Law Reform Project as it Relates to Ontario’s Capacity and Guardianship Laws.
Kim is the Toronto branch chair of The Society of Trust and Estate Practitioners (STEP), Toronto, and as such a Director of STEP CANADA. Kim is also Program Chair, Toronto and is designated as a full member of STEP Worldwide as a Trust and Estate Practitioner, TEP..
Kimberly is a committee member of The Professional Advisory Group of the Baycrest Foundation. Kimberly is a member of the Estate Planning Council of Toronto. Kimberly is on the Estate List Users Committee of the Ontario Superior Court of Justice at Toronto.
Kimberly was awarded the Hoffstein Book Prize Award in 2009, recognizing contributions and achievements by Members of the OBA, in Wills, Trusts, Estates, Writing and Teaching. Kimberly was the recipient of the Queen’s University Special Lecturer Award in 2003 where she taught a second year course in Appellate Advocacy as an Adjunct Professor.
Kimberly mediates disputes in her practice areas via estatemediators.ca
Kimberly has taught as an adjunct professor at Queen’s University and the University of Toronto, as well as the Bar Admission Course at Osgoode, and presents at Continuing Legal Education and Professional Development programs for lawyers, as well as at in-house financial institutions, ILCO, Institute of Law Clerks of Ontario, hospitals and other organizations and foundations, universities and colleges. She maintains a teaching affiliation with the University of Toronto and recently taught on the subject of ‘Capacity’ together with Mark Handelman and Laura Watts in a course on Law and Aging.
Kimberly authored the chapter, “Conundrums in Cognition: Planning for the Future”, in “What Next? Navigating Later Life Transitions”, Senior Solutions, Release 2012
Kimberly authored the chapter, “Fiduciary Accounts and Court Passings”, in “Armstrong, Estate Administration: A Solicitor’s Reference Manual”, Carswell and Thomson Reuters, Release 2012-13
Kimberly authored the chapter, “Estates Issues Relating to Ontario Family Law, Property Rights and Obligations.” in “Property Rights and Obligations Under Ontario Family Law”, Canada Law Book, Thomson Reuters, 2012.
Kimberly authored and edited the Canada Law Book publication “Capacity to Marry and the Estate Plan” in 2010, with co-authors: Dr. Michel Silberfeld, Heather McGee and Helena Likwornik.
Kimberly is a co-contributor to the Canada Law Book publication “Key Developments in Estates and Trusts Law in Ontario” published annually since 2008. She authors the chapter, “Passings of Accounts, including Contested Passings.”
Kimberly has authored the following published articles:
- Estates and Trusts Pension Journal: “Capacity and the Estate Lawyer: Comparing the Various Standards of Decisional Capacity” E.T. & P.J., May, 2013
- Just Magazine: “Planning for the Protection of Older Adults—How Can We Protect our Elderly Friends and Family Members who may be Vulnerable to Abuse or Exploitation?”, December 2012
- Advocates Quarterly Journal: “Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992″, Volume 40, Number 3, November 2012
- The Lawyers Weekly: “Executor Exit: Removing a Trustee”, Volume 32, No. 29, November 2012
- Law Times: “DeLorenzo Sends Cautionary Message to Estate Trustees”, September 10, 2012 [co-author Avi Dahary]
- The Lawyers Weekly: “Predatory Marriage Challengers have Limited Options”, Volume 32, No. 19, September 2012
- Advocates Quarterly Journal: “The Intersection of Family and Estates Law: Post-Mortem Claims Made by Modern Day Spouses”, Volume 40, Number 1, June 2012
- Estates and Trusts Pension Journal: “Life after Death: Modern Genetics and the Estate Claim”, Vol. 28, No.2, 2009
- Estates, Trusts and Pensions Journal: “Powers of Attorney and Financial Abuse”, Vol. 27, 2008, No. 4
- Estates and Trusts Pension Journal: “The Use of DNA in Contested Estate Matters”, E.T. & P.J. Vol. 23, 2004 No. 2
Kimberly is the mom of Sammi, age 14. Kim has a new affection for cycling and a renewed interest in photography after a long lapse and is now experimenting with her new Nikon D800. Kim also runs marathons in her spare time and is taking guitar lessons for the first time.
- Expert Advisory Panel, Law Commission of Ontario’s Law Reform Project as it relates to Ontario’s Capacity and Guardianship Laws
- Ontario Bar Association (OBA)
- Canadian Bar Association (CBA) Elder Law Executive (Past)
- OBA Section Membership – Sole Small Firm and General Practice, Health Law, Civil Litigation
- Estate Planning Council of Toronto
- CBA, Executive Member Elder Law Section
- Estate List users Committee of the Ontario Superior Court of Justice (OSCJ) (Toronto)
- Executive Member of Young Lawyers Division (YLD) (Past)
- OBA, CLE Main Committee, Executive Member (Past)
- OBA, Vice Chair of the Estates & Trusts Section Executive (Past)
- OBA, Annual Institute Review Committee, Years 2005/06, 2006/07 and 2008 (Past)
- The Law Society of Upper Canada
- National Academy of Elder Law Attorneys (NAELA)
- National Guardianship Association
- Toronto Lawyers Association (TLA) Formerly Metropolitan Toronto Lawyers Association (“MTLA”)
- Society of Trust and Estate Practitioners (STEP) Worldwide, Full Member
- STEP and Toronto Executive Member, Program Chair
- The Advocates’ Society
- Advocacy Centre for the Elderly (ACE)
- Baycrest Foundation, Professional Advisory Committee Member
- National Initiative for the Care of the Elderly (NICE), Ontario Association of Community Care Access Centres (OACCAC)
Heather B. Hogan, J.D.
Heather B. Hogan is an associate with Whaley Estate Litigation. Her practice focuses on the areas of estate, trusts, capacity, fiduciary, and power of attorney litigation.
Prior to joining Whaley Estate Litigation, Heather was counsel for the Ministry of the Attorney General’s Office of the Public Guardian and Trustee (“OPGT”). Her work at the OPGT focused on civil and estates litigation, including capacity, guardianship and child protection proceedings.
Heather obtained her J.D. from Osgoode Hall law school, where she was a junior editor at the Osgoode Hall Law Journal and a student case worker at Parkdale Community Legal Services. Heather’s pragmatic, results-focused approach is also informed by over a decade of practical experience. Prior to studying law, she was an Executive Assistant to Justice Denise Bellamy at the Toronto Computer Leasing Inquiry / Toronto External Contracts Inquiry and commission staff for Justice Stephen Goudge on the Inquiry into Pediatric Forensic Pathology in Ontario.
Heather has represented clients at numerous tribunals and before the Superior Court of Justice and the Ontario Court of Justice. She has also drafted submissions for matters before Ontario’s Divisional Court and Court of Appeal.
- The Law Society of Upper Canada
- Ontario Bar Association (OBA)(Civil Litigation, Trusts and Estates)
- Canadian Bar Association (CBA) – Executive Member of the Elder Law Section
- The Advocates’ Society
- Toronto Lawyers Association
Whaley Estate Litigation
Whaley Estate Litigation, a Toronto based law firm, offers clients expertise in the Estate Litigation context. Our firm aims to ease the stress of litigation for clients as they navigate emotionally difficult waters by providing effective and prompt resolution with the goal of protecting clients’ interests.
We regularly advise Executors, Administrators, Trustees, Attorneys and Guardians on their fiduciary obligations and the expectations of the legislation governing their actions. Our resources include highly skilled Estate and Trust Planners, Estate Administrators, as well as Planning Counsel for the Disabled, Charitable Gifting and Tax. We advise on the prevention and resolution of litigation matters arising out of Estate and Testamentary Planning.
Whaley Estate Litigation focuses on the litigation, mediation and dispute resolution of estate, trust, and capacity matters including but not limited to related issues of undue influence, incapacity, infirmity, depletion of assets, fraud, forgery, and suspicious circumstances concerning testamentary instruments and advises on matters of testamentary incapacity and incapacity to marry, make gifts, manage property and manage personal care.
Whaley Estate Litigation is led by Founding Principal Kimberly A. Whaley. Kimberly was designated as a Certified Specialist in Estates and Trusts Law by the Law Society of Upper Canada in 2006. She has been peer rated annually and listed by The Best Lawyers in Canada in the specialty of Estates and Trusts since 2009. Kimberly was chosen by Lawday Leading Lawyers as one of the top 60 leading lawyers in Estates and Trusts.
Whaley Estate Litigation provides litigation, mediation and dispute resolution services and advice to counsel, and clients in the following practice areas:
- Will, Estate, Trust Challenges/Interpretations
- Dependant Support Claims
- Passing of Estate, Attorney, Guardian and Fiduciary Accounts
- Capacity Proceedings
- Power of Attorney Disputes
- Consent and Capacity Board Hearings
- End of Life Decision Making
- Treatment Decision Disputes
- Elder Law
- Solicitor’s Negligence
- Agency Services
- Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation and other Fiduciaries
- Court Applications for Advice and Direction
- Section 3 Counsel Under the Substitute Decisions Act
In summary, Whaley Estate Litigation focuses on providing advice to, and representation of clients exclusively in the following areas: Will and Estate Challenges; Will and Trust Interpretations; Trust Variations; Dependant Support Applications; Guardianship Applications; Capacity Proceedings in the context of Testamentary Instruments, Power of Attorney documents, Marriage and Inter Vivos Gifting; Passing of Fiduciary Accounts; Trust Disputes; Power of Attorney Litigation; Fiduciary Litigation; Probate Applications; Solicitor’s Negligence; Elder Law and Elder Abuse; Consent and Capacity Board Proceedings including Appeals; and End of Life Decision Making.
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