Elder law is a combination of several sub categories of estate litigation. It encompasses considerations with respect to wills, powers of attorney, healthcare consent, substitute decisions, capacity issues, guardians for property, trusts, estate planning, estate administration, intestacy and succession rights.

These sub categories form the foundational considerations for complex legal issues that require prompt attention and competent action.

Litigation may arise because a loved one passes intestate (without a will), and there may be competing succession rights. Sometimes, a person may have issues understanding and appreciating their assets and liabilities making them temporarily or permanently unable to manage their property, requiring a guardian. On occasion, beneficiaries under a will may realize that the estate administrator/trustee has done something outside the scope of the direction under the will.

In order to help manage a person’s property, a private guardian may be required, should there be no valid and enforceable power of attorney. In some cases, the Office of the Public Guardian and Trustee or the Office of the Children’s Lawyer may need to be placed on notice with respect to any ensuing estate litigation.

It is not uncommon for trusts to be established during the ordinary course of estate administration. In some cases, advice from financial advisors and chartered accountants is required. However, that may not relieve a trustee from their legal and fiduciary obligations.

These are duties that a fiduciary owes to another party, in part because of the nature of the relationship.

For example, court appointed guardians, powers of attorney, estate trustee’s, executors and administrators of an estate, each must respect these obligations.

The basic fiduciary obligations are summarized as follows:

  1. Duty of good faith and fidelity
  2. Duty not to make secret profits
  3. Duty to advance the best interests of the beneficiary
  4. Duty not to engage in any act that is a conflict of interest with the beneficiary

Failing, a fiduciary may be liable to account for the losses or profits by their action/inaction, to the beneficiaries. Additionally, damages and contempt orders are plausible consequences for breach of fiduciary obligations. Sometimes, an estate trustee fails to administer a will or pass accounts which may result in proceedings against them.

The depth required for proper analysis of this particular aspect of our practice requires an in-depth review of the evidence and material facts with respect to any potential estates matter, by one of our qualified lawyers.

In many cases, it is recommended that you seek legal advice, not completely because of a lack of specialized training or experience, but because in some instances emotional trauma and the pain of the ordeal may form a barrier with respect to your compliance with all the essential requirements of any estates matter.

Should you feel that you may have an estate issue, do not hesitate to contact our office.