Generously funded by the Law Foundation of British Columbia, this report is the first comprehensive and internationally comparative study of elder and guardianship mediation in Canada.

As a person ages, mediation may be used to resolve disagreements in the context of estate planning, financial planning, organizing caregiving, developing a housing plan, discussing lifestyle choices—varied circumstances where an older person may involve family or other support people in problem-solving, especially where there is a desire to resolve a legal matter without going to court.  Anticipated changes to guardianship law in BC include mandatory mediation in certain circumstances.

Elder and guardianship mediation is a new but growing area of practice.  The work gives rise to complex ethical and practical questions in regard to maximizing the ability of the older person to participate in decisions about his or her future as well as ensuring age-based discriminatory assumptions and values are not affecting the decision-making process.

“As a province we are now at the precipice of proclaiming new legislation governing adult guardianship mediation and also of tremendous growth in the field of elder mediation, based on demographics,” says Executive Director Jim Emmerton.  “In order to move forward practitioners, policy-makers and educators require access to comprehensive information on elder and guardianship mediation.  This report fills that need.”

This large report includes consultation feedback from elder mediation leaders from across North America and compares lessons learned from key pilot guardianship mediation programs in other jurisdictions in the US and Canada.  The report concludes with recommendations for training and standards for elder and guardianship mediators, ethical standards for practice, mediation models and styles, as well as for the design and development of a court-connected adult guardianship mediation program in BC.

The report is available online at http://www.bcli.org/ccel/projects/elder-and-guardianship-mediation.

The Canadian Centre for Elder Law strives to be a leader in law reform by carrying out the best in scholarly law reform research and writing and the best in outreach relating to law reform as they relate to older adults.

CKNW – Sept15-11 – 1.30pm- Interview with Monique (part 1)

CKNW – Sept15-11 – 1.40pm – Interview with Monique (part 2)

Sperm donors are used by heterosexual couples with fertility challenges, by same-sex couples and by single women. What are the implications? In this interview, CKNW host Simi Sara and I discuss:

• Recent reports of the high numbers of children conceived from the same anonymous sperm donor
• What you need to think about if you’re planning to use a donor:
  -      The choice of an anonymous versus known donor (friend, family member)
  -       The need for a proper legal agreement with a known donor
• Information sharing with children and the impact of disclosure on children and donors
• Recent caselaw upholding the adult child’s right to know about their biological origins, and
• What we can learn from adoption law reform

In my post on ways to avoid litigation, I noted that your executor needs to be able to find your will!    If a copy is available, you may still be able to gain probate, but there will always be a shadow over the process.   To be safe, your executor should be able to find your most recent, signed original of your will.  There are many safe places to keep it, safe deposit boxes, banks and lawyer’s offices being among the most common.  In British Columbia, you can register the location of your will through the Vital Statistics Agency for a modest fee. If you have preplanned your funeral arrangements, you should ensure that documentation is readily found.

Hopefully, your executor will be able to find your will with ease and is ready to jump in and handle your estate.  Once the will is located, the executor must then assemble a list of assets and debts owed by the deceased – and if files are not all centrally located and well-filed,  this can turn into a large-scale search mission at the residence(s), with enquiry letters to many institutions.   A little preplanning on your part may make the job a lot smoother, and take less time and effort during what is a stressful time.

Start by assembling a list of institutions you regularly deal with,  and an outline of your accounts is good idea – with contact information if necessary.  You may also want to include copies of important documents,  such as the paperwork for the family business, a marriage agreement, the family trust, or any loans you may have given.

Another idea is to retain copies or an index to your assets and important documents on a thumb drive or CD,  but ensure that your original will and any other testamentary documents are kept intact (do not remove the staples!) and in a secure, registered location.  It’s a good idea to keep it all together, and update the index/copies as needed on a regular basis.

1.    Consider the family history when planning your estate – especially blended families

Your family has had a lifetime to build their relationship – and you should consider it when you planning your estate.  If you treat siblings unequally in the will without reason, it may lead to resentment, alienation, and litigation.  If there is a reason for unequal treatment, such as gifts or loans during your lifetime, it’s a good idea to document it carefully.  If you have made gifts or loans to one, and the other(s) know about it, you should consider dealing with that too.

Blended families are often fraught with friction, between spouses and offspring from different marriages.  The size of the estate, and how and when it was amassed may further the conflict. Careful estate planning can reduce the likelihood of litigation.

2.    Avoid a property war

Many families have prized possessions – a cottage, grandma’s rocker, the armoire lovingly built by Dad.  Sentimental property can create a lot of stress and fighting – consider gifting specific items to specific people, or including a clause that if the beneficiaries can’t agree, everything will be sold.

3.    Remember the Wills Variation Act

The Wills variation Act allows spouses and children (but not step-children) to challenge the provision made for them in the will of the deceased.  If a person fails to make adequate, just and equitable provision for a spouse or child, the Courts will consider fully consider the circumstances and may vary the provisions under the Will.

If you wish to disinherit a spouse or a child, you should get legal advice on how to document your wishes.

4.    Consider how your assets are held (and beware joint tenancy as a tool)

First of all, make sure you know if you hold your assets in joint tenancy, or as tenants in common with others.  In general, joint tenancy means that the survivor inherits the asset outside the estate.

Many people mistakenly believe that by holding their assets in joint tenancy with another person, they can avoid probate and litigation.  Over the past few years we have seen an increase in litigation to determine whether a gift to the survivor through joint tenancy was truly intended by the deceased, or if the survivor holds the interest of the deceased “in trust” for the estate.  So if your intention is to gift the asset upon death, it is important to document it properly.

5.    Avoid challenges of incapacity or undue influence

If there is any concern about your health, you may want to get a doctor’s opinion regarding your capacity to make a will.  Dramatic changes in the contents which surprise beneficiaries (or former beneficiaries) can fuel suspicion in your beneficiaries (or former beneficiaries) that you either lacked capacity or that you were subject to undue influence.

6.    Make sure someone can find your will!

Keep it in a safe place and in British Columbia, and register its location with the Vital Statistics Agency.

7.    Beware the Home-Made Will

Home-made wills may lead to your estate being distributed differently than intended, through inadvertent mistake – for example, a gift of your RRSPs to one child and the residue of your estate, before taxes to another, may appear to have the same value to each, but may actually have a very uneven result once the taxes are paid.   A homemade will may not comply with the formalities required by the Wills, Estates and Succession  Act and be invalid – and the intestacy provisions for dying without a valid will may be very different from what was intended.   If litigation ensues, the legal fees will outstrip the cost savings of not having a professional prepare your will.

8.    Choose your Executor carefully

Choose your executor carefully.  You want someone who is diligent and can be even-handed; if you are thinking of choosing two of your adult children who do not get along now, they will likely not get along as executors and problems will follow.  In high-conflict cases, a professional  executor may be a better choice.  You should also consider setting out what compensation your executor should receive.

9.    Review your will regularly and especially after large life changes

Life doesn’t always go as one might expect – if you have a large life change, such as a separation, a tragedy, or a large inheritance, you should seek legal advice and reconsider your estate plan.

10.  Avoid surprises

Many families, and especially blended families, can avoid a lot of problems by discussing the estate plan early.  If the family already has conflict, consider having a trained mediator facilitate the discussion.

I appeared in Court recently, representing a client in a committeeship application.  The client was in a long-term marriage, and his wife has been diagnosed with dementia. She held assets in her name, and as a result he was unable to deal with them without her agreement, but she was no longer able to make decisions about investments, etc.

In this client’s case, a committeeship was the best course of action.  A committeeship is a way of protecting a vulnerable adult who is no longer capable of managing him or herself, his or her affairs, or both, under the Patient’s Property Act.  The adult’s vulnerability may stem from the gradual onset of a condition, like dementia, or suddenly, such as the result of an accident.  Once a person is appointed committee of the vulnerable person, he or she  will be granted the ability to make decisions regarding the vulnerable adult’s person (health care, residence), the person’s estate (financial decisions), or both, depending upon what is granted by the court.  More than one person can be appointed committee.

In a simple case, a brief court appearance by a lawyer is required to have someone appointed committee.  The court will base its decision on what is in the best interest of the vulnerable adult, and in making this decision, the Court will review evidence, which includes:

• the sworn statements (called affidavits) of two medical doctors regarding the vulnerable adult’s capability, diagnosis and prognosis;
• a sworn statement from the applicant setting out the vulnerable adults’ family, residence, and financial situation;
• the consent from other affected family members, if possible; and
• the position of the Public Guardian and Trustee, which reviews the application before it goes before the judge.

The Court will make an order if it is in the best interests of the vulnerable adult, and will consider:

• whether immediate family members are in agreement;
• whether there is any conflict between family members or between the family and the adult;
• what is the level of previous involvement with the vulnerable adult;
• what is the proposed committee’s level of understanding of the vulnerable adult’s current situation, and will be able to cope with future changes;
• whether the proposed committee will provide love and support;
• whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the vulnerable person’s benefit;
• who is best to advocate for the vulnerable adult’s medical needs;
• the plan of care and management for the vulnerable adult and his or her affairs.

In  the usual case, the evidence is presented in written form and applicants do not have to attend the hearing.   Depending upon the family relationships and the person’s financial situation, the court may require them to post a bond in security for their management of the assets. Once made committee, the applicant will also have to have their accounts of the person’s financial assets reviewed on a regular basis.

Once the committee is appointed, the Court retains the its parens patriae jurisdiction to ensure that health care decisions are being made cautiously and in the patient’s best interests. (For a recent contentious case, see Re: Palamarek, 2011 BCSC 563 at 17).

The Adult Guardianship and Planning Statutes Amendment Act, 2007 (the “Act”) came into force on September 1, 2011 and revises the Power of Attorney Act (“POAA”), Representation Agreement Act and Health Care (Consent) and Care Facility (Admission) Act (“HCC”).

The amendments to the POAA provide greater legislative certainty in both creating and exercising enduring powers of attorney.  Although existing enduring powers of attorney may be grand-parented under the Act, it would be prudent to review your power of attorney with a lawyer to determine if it needs to be modified to reflect your wishes in light of the new legislation.

Some notable amendments to the POAA are as follows:

• An attorney may not be compensated unless there is an express authorization within the document;
• An individual who is paid to provide personal or health care services is barred from being appointed as an attorney;
• The attorney must now sign the document before they can act; and
• There is an express requirement that the attorney keep and produce financial records.

Another significant change is that as of September 1, advance directives are recognized as legal documents which allow an adult to provide advanced consent to or refusal of treatment directly to a health care provider.  In other words, if an incapable adult does not have a Committee appointed or a Representative pursuant to a Representation Agreement, the health care provider can directly on instructions contained in the advanced directive.

I had the opportunity to speak with CKNW’s Marcella Bernardo this weekend about anonymity of sperm donors in light of the recent landmark case Pratten v B.C. (A.G.) – Listen to or download the interview here

My view is that the underlying idea of the decision – that donor conceived children need to have access to information about their biological origins  – is correct.  That said, any change to the law to open up information available about donors must be accompanied by law reform that makes it clear that donors are not the legal parents of the child and should also give donors who donated in the past the right to veto disclosure about their identities. As with adoption, it is critical for the law to balance the rights of children to information about their biological origins with the rights of donors to privacy and with the interest of parents raising children in having a stable family unit where they are recognized as the full legal parents of the children. B.C.’s reformed adoption law provides an excellent model about how this can be done, but needs to be adapted to fit the assisted reproduction context.

I was on the Bill Good Show on Monday, June 13^th, 2011 to talk about the evolution and increasing use of social media in the context of family law.  A description of and an audio link to the interview are below:

 TURNING TO FACEBOOK TO CATCH A CHEATER: SOCIAL MEDIA AND DIVORCE

New York congressman Anthony Weiner’s marriage is in trouble after reports surfaced that he had taken pictures of his private area and sent them to a slew of women he did not know. And he’s not the only one in hot water after impulsively hitting the “send” button rather than thinking with his brain.  Research shows that social networking sites like Facebook and Twitter are increasingly being blamed for the breakdown of marriages. How are people getting caught red-handed online? How is this evidence being used against them in divorce court? And what does narcissistic personality disorder have to do with it all? 

For the complete interview: CKNW-June.mp3

Erica Pinsky, M.Sc, CHRP, is a respectful workplace solutions expert.  As a speaker,  trainer, author and consultant she provides a full range of customized services and solutions to eliminate discrimination, harassment, bullying and  destructive conflict in the workplace.  Her highly acclaimed book, “Road to Respect: Path to Profit” is filled with engaging stories, powerful insights and concrete strategies on how to become an employer of choice by building a respectful workplace culture. Erica has been featured in the Globe and Mail, Business In Vancouver and Canadian Retailer Magazine

Heritage Law is featured in Erica’s June edition of her newsletter Reflections On the Road to Respect.  The link to the newsletter is here and the full text is below:

I heard about Heritage Law quite by accident. I met lawyer Monique Shebbeare at a networking event.  I learned that she was working in a firm focused on estates, wills and family law. Then she shared that she is the mother of an 18 month old.

Given what I know about the huge career challenges that face female lawyers with children I was immediately curious to learn more about her experience. The decision to have children, which research has consistently confirmed continues to be a “career limiting” move for women in the corporate world, is particularly true in the case of female lawyers. While women make up more than 50% of law school graduates, very few of those women ever make partner at most firms.

I was all set to hear a story of stress, guilt, conflict and long hours when I asked her about her experience parenting as a  working lawyer.  Much to my surprise, she told me was thriving. The reason directly relates to the culture of the firm she works for: Heritage Law.

Heritage Law broke the mould with respect  to traditional  law firm cultures. Founded by Nicole  Garton-Jones when she was pregnant with her first child, the firm was structured to support its lawyers to be successful at both the practice of law and parenting.  Six years later, the firm is enjoying healthy growth and success.  The female employees, their families and their clients are all reaping the benefits of Ms. Garton-Jones vision.

Given that what I was hearing sounded like a workplace culture aligned with the value of respect, one that is creatively finding new ways to embrace diversity, I was most interested in learning more about the workplace culture at Heritage Law.

I had the opportunity to do so recently when I went over to West Vancouver to speak with Ms. Shebbeare as well as Ms.  Garton-Jones. Here are some of the highlights of what I learned.  To hear more, please listen to the entire interview.

Innovation and  Technology
Like many business innovators, Ms. Garton-Jones was looking for a solution to a problem.  Having worked in both large and small law firms, she was familiar with the challenges faced by female colleagues when they decided to start a family, challenges which result in many choosing to leave the profession, a choice she was not willing to make.

Her vision involved the creation of an alternative model, one that would effectively manage the competing demands of building a new law firm and being a new mother.  The question was how to do it.

Technology provided a large part of the solution.  “We put an IT structure in place to facilitate high level legal services that could be done on a flexible basis.”

Heritage Law is “paperless” and utilizes practice management software to centrally manage billing, time tracking, matter information, contacts, appointments, documents and document assembly.

One of the first things I noticed when I walked into Ms. Shebbeare’s office was that she had two monitors.  That is one aspect of the paperless structure.  All of the  firm’s data and specialized software applications are stored in a remote, secure “cloud” server.  All of the information that she and her colleagues need to do their jobs can be accessed from anywhere as long as there is an internet connection.

Another piece of technology that supports the kind of flexibility working parents need is provided by the VOIP (voice over IP) phone system which allows ten staff in ten different locations to use the same phone line and system.  They use a remote answering service which answers client calls during the business day if a staff member is out of the office and routes the message to the appropriate person to deal with.

All staff have a computer, high speed internet, a VOIP phone and a scanner at their home offices.  The firm’s core philosophy, one intricately aligned with the value of respect, is to create a “caring and supportive culture that really fits each lawyer’s life needs.”

NGJ – “I focus on keeping the overhead low to provide flexibility.  It is really about finding a balance between keeping the overhead low and providing enough resources so that they can be the best lawyers that they can be. Technology allows us to make more money in less time.”

Culture Attracts Talent
Work-life balance, or work life integration as I refer to it, is largely seen as a “woman’s issue.”  Unfortunately, this tends to side line the bottom line business value of creating a workplace culture that truly respects the whole person at work.  In addition to being a critical factor in supporting employee health and promoting workplace wellness, Ms. Garton-Jones described the firm’s culture as a “significant strategic advantage in terms of attracting great talent.”

It was Heritage law’s “culture of flexibility and autonomy” that interested Ms. Shebbeare (who Ms. Garton-Jones described as a brilliant lawyer).  “Quite a few of us were at top firms, but those cultures didn’t work for us. Here we decide how we want to live our lives as lawyers.  There is a  shared understanding among the lawyers about that.”

Ms. Shebbaere shared her experience working in both the 300 person Bay Street firm as well as smaller traditional firms, with “fixed requirements of when and how you do your work as well the level of output required regardless of the business outcome of the firm.”  What appealed to her about Heritage law was that it was structured so that she could meet the same business results but do it in a way that worked with her life as a new mother. “No one is looking over my shoulder to say is Monique here, or where is Monique?  Rather the focus is on how your practice is going in terms of building your practice. Are our clients being served? What are the business results at the end of the day?  I can meet all of those objectives and still have a great deal of flexibility.”

The culture at Heritage Law is values based. At its core it is about shifting from a power based, paternalistic, command and control framework to a collaborative, partnership model based upon a foundation of trust, mutual respect and accountability.

Ms. Garton-Jones chose to combine the traditional law firm values of professionalism, commitment to client service, professional excellence, integrity, ethics and contribution to the community with other core values including innovation, collaboration, caring and nurturing to create the work-life balance that was, as she stated, “a business necessity,” as opposed to a “nice to have.” Work life balance was not an option.  It was necessary for the survival of the firm.

NGJ  “We don’t have command and control hierarchical model which you see in most traditional firms. We don’t have the senior partner who tells everybody what to do.  It is truly more collaborative.  You can say that a lot of those values are female values, and interestingly enough we are all women.”

However, It is not just woman that are looking for a collaborative culture that offers employees  flexibility, autonomy and control.  Ms. Garton-Jones, a Gen Xer, shared an experience she had speaking with a young Gen Y man, a really talented lawyer who she would like to have join the firm.  He told her that the culture at Heritage Law would be one which would be ideal for him and others in his generation. “You really get me,” he told her.

NGJ – “We did not set this up for women.  I set this up because of necessity, and then other smart, conscientious women, interesting people contacted me.  In traditional firms a lot of connections are made on the golf course, on the squash court.  We have the female connection.  It was not that men were excluded it was just that they were not in on the conversation.  Now I am pro-actively out there to find a man.  I think it would be good for our culture to have a male lawyer. Diversity is good because having a variety of views at the table creates a better organization.   I think the firm will be improved to have a man, to have different ethnicities. That is what I want. That will only allow us to be better, stronger and have a wider variety of views at the table. Gen Y, they want autonomy.  Their view of success is a little more holistic. I think there are different values about what people expect in the workplace. It is not necessarily a male female divide. It is generational as well.”

According to Ms. Shebbeare “This is more of a horizontal model. There are business goals but how we go about meeting the business goals is more up to us. How do I like to practice as a lawyer? What is my individual personality as a lawyer?  If I need support I have people I can call but I don’t have to answer to anyone. The structure creates an emotional and psychological difference. In other places it was more that other people were in charge of my life and here I feel like I am in charge of my life, I am my own boss.”

It is well known that lack of control, particularly at work, is one of the main contributors to stress, a costly and damaging problem in today’s workplaces.  Ms. Garton-Jones shared some surprising information about the legal profession with me that I had been completely unaware of.  “Studies show that there are extremely high rates of alcoholism and depression within lawyers working in traditional structures. Lawyers have much higher suicide rates than the general population. The traditional model is not conducive to wellness. The pressures of the profession are significant. We want to make it a job, not a sprint.  We are in it for the long haul.”

Given that the firm is all women, I was curious about their experience with this kind of workplace bullying. I have worked as a consultant in many female dominated environments where disrespectful behaviour is a huge problem. What I heard confirms what I consistently hear from respectful, values based employers: it does not happen here because it is at odds with the cultural norms.

NBJ – I have experienced that at other firms.  Bullying happens when it is a highly competitive environment where there are not many roles for women, so rather than supporting each other they start competing with each other. In this office it is not an issue because there are no barriers to advancement, there is no scarcity of opportunity. People are only bound by their vision and the amount that they want to work.  It is not part of our culture.”

Supporting Success
I describe respectful leadership as relationship based leadership.  The practices that demonstrate respectful leadership are designed to promote success, for the leader, those she/he leads and the organization as a whole.  Ongoing, respectful communication is the foundation of this leadership style.

Ms. Garton Jones described a leadership style aligned with the value of respect. “I have a vision.  I hire extremely smart, conscientious people that I respect and give them the resources they need to manifest their potential. Bureaucracy is meant to manage mediocre employees. Get great people, give them the resources they need to be successful and then get out of their way. I am not Monique’s boss.  I happen to be paying the lease but Monique is truly my colleague.  My job is to facilitate the back hand. I make sure that they have the tools that they need to be successful. I ask questions – what do you need to be successful? We communicate back and forth. I make sure that the lawyers have the resources and infrastructure in place to provide the support that they need.”

Ms. Shebbeare commented. “You own the firm and had some expectations which we talked about right at the beginning but other than that I would say to Nicole, this is the practice I envisage for myself.  It is a constant negotiation, about my needs and the needs of the firm.  It is a fluid conversation. Nicole arranged for a coach to support the lawyers, who helped me set up business plan.  We have admin support, web site and support, continuing education.  The costs of networking are paid for by the firm.  All of these factors help me at the initial stage of building a practice.”

Last month’s enews focused on values based company Ben and Jerry’s, and their triple bottom line of people, profit, planet.  I asked Ms. Garton-Jones and Ms. Shebbeare to talk to me about their vision of success;  personal, professional and organizational.  What I heard was consistent with the attitudes of other socially conscious, values based companies.  Profit, measured in strict monetary terms, is a critically important part of the equation, but it is not the only indicator of success.

Ms. Garton-Jones’s perspective was that it was about being “Successful as professionals  in serving  our clients, giving back to our communities, and making sure that we are contributing to our families.  Finance is important because without financial success none of the other things can be accomplished.  It is one piece of a larger construct.  We do have minimum requirements, some set criteria but they are not onerous. They are for financial viability. The goal is not that the lawyers are going to be a profit center.”

Success for Ms. Shebbeare is about “being recognized as a professional, as a leader in my area of practice. Being seen as an expert. Making a living. And my underlying belief is that you can do that in a way that still allows you to have a life with your family.”

No doubt the thriving practices of the lawyers as well as the business growth at Heritage Law is proof positive that she is right!

Monique Shebbeare and I recently had the pleasure of chatting with Erica Pinsky, MSc, CHR, a “Respectful Workplace Solutions Expert™,” to discuss Heritage Law as part of a series featuring companies that are “getting respect right”.  Erica offered that “learning about firms like yours affirms my vision of the possibility of respectful workplaces where people are treated like adults within a connected, compassionate community, and inspires me to keep working to spread the message and promote change.”

Thank you very much to Erica for the opportunity to participate in your series.   A link to the podcast is here:

http://ericajpinskyinc.ca/erica_pInsky/Podcast/Entries/2011/5/31_Heritage_Law.html

Erica can be reached at:
(604)266-1267
http://www.ericapinskyinc.ca