Canadian Lawyer

March 2021

The most widely read magazine for Canadian lawyers

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course, says Paperny, this can lead to a greater likelihood for litigation due to the lack of a plan. Sender Tator, a partner with Schnurr Kirsh Oelbaum Tator LLP, another winning firm in the wills, trusts and estates category, says he seen quite a bit of litigation that has come out of the transfer of wealth as the Canadian population ages. As well, there are more disputes between estate trustees and beneficiaries over the executor's handling of the administra- tion of the estate. Nimali Gamage of Goddard Gamage LLP agrees, saying there are more "family members abusing or misusing the court process to battle siblings under the guise of elder law litiga- tion." There's also an increase in the number of people of all ages wanting to make wills and powers of attorney due to issues raised and discussions prompted by COVID-19. The pandemic has brought into focus some of the short- comings in long-term care homes and assisted living facilities — with issues related to understaffing and inadequate living conditions. This in turn has led to more conflict among family members in trying to determine the care for their elderly loved ones and at what cost. "There can be highly contentious disputes between substitute decision-makers, children or other family members about the manner in which elder adults should be cared for," Paperny says. Angelique Moss of Casey & Moss LLP says she is seeing similar situations. "The decision to move someone into long- term care is particularly fraught right now due to COVID-19. Siblings will often have different views about what's in their parent's best interests." Her colleague Laura Cardiff adds, "These can be very heated files. In many ways, they have more in common with a child custody matter than your traditional estate litigation file. " Even day-to-day decision-making requires an "impossible balancing" of COVID risks against the harm of isolation, she says, "for example, whether or to what extent to permit visitors, how to define essential outings, navigating the wearing of PPE and, now, receipt of the vaccine." All these decisions can leave substitute decision-makers vulnerable to criticism and even litigation. balesbeall.com An award is only as good as the work it represents. Honoured to be named (for the third time!) one of Canada's Top 10 Wills, Trusts & Estates boutiques by Canadian Lawyer magazine. "To say that the pandemic has impacted our practice area and the way we do business would be an understatement." Daniel Paperny, WEL Partners

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