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Calgary, Alberta lawyer Gordon Vanderleek is the Founder and Chief Strategist of VanderLeek Law (and Evelyn's wills and trusts guru!). His practice focuses on solving problems and educating in the areas of estate planning, estate administration and trust law. Gordon takes pride in being compassionate and empathetic, and making a difference in people's lives during high stress times of their lives.
Ackah Law recently expanded our legal services to provide wills and estate planning for newcomers to Canada. From our experience, we see that many temporary and permanent immigrants don’t understand that if they are living in Canada and unexpectedly die, if they don't have a will, the laws in the province or territory you live in will determine how your estate is divided - not necessarily the laws of their home country.
Evelyn and Gordon discuss:
- Why estate planning is hard for many people - talking about what will happen to their assets - their things - after they are gone, and how to protect their loved ones; and why Gordion decided to practice this area of law.
- Why wills and estate planning is important to everyone, including immigrants.
- Life events and milestones that should trigger estate planning, beginning at age 18.
- How Canada and Alberta laws impact newcomers, and what happens when a person's wishes don't match their legal documents. How to make sure your wishes are carried out.
- The importance of establishing guardianship for your minor children.
- How Personal Directives and Power of Attorney plan for incapacitation or disabilities, which have become a more visible issue since Covid.
- Special trusteeships and adult guardianships that are available for adults with special needs, and how the Britney Spears conservatorship made people aware of the need to do advance planning.
- Are DIY wills and holographs enforceable?
- Estate planning for children with special needs: how to gift money and protect their financial future.
About Evelyn Ackah
Evelyn Ackah is the Founder and Managing Lawyer at Ackah Business Immigration Law. We work with individuals and business owners from all over the world who want to cross borders seamlessly. For more information on immigration to Canada or the United States, Ask Evelyn Ackah at Ackah Business Immigration Law today at (403) 452‑9515 or email Evelyn directly at contact@ackahlaw.com.
Transcript
Evelyn Ackah:
Good day, everyone. This is Evelyn Ackah from Ask Canada Immigration Lawyer Evelyn Ackah Podcast. I have the pleasure today of having my friend and colleague Gordon Vanderleek from Vanderleek Law here in Calgary, Alberta joining me on our podcast to talk all things wills and estates. So welcome, Gordon.
Gordon Vanderleek:
Thank you very much. It's definitely my honor and privilege to receive the invitation and gladly made the time. Look forward to our conversation.
Evelyn Ackah:
I'm really excited to have you. So full disclosure, Gordon is also my wills and estates guru. He's been really helpful, because families change and move and transition. I think it's really important to always have that person that provides the wills and estates expertise. It's not an area you can dabble in, that's what I say, especially the same with immigration. You can't dabble and do it well. So, Gordon, that-
Gordon Vanderleek:
Right. I was just going to say that, that-
Evelyn Ackah:
Exactly.
Gordon Vanderleek:
... full disclosure, Evelyn's my go-to person for immigration, and well-deserved reputation as a leader in this area.
Evelyn Ackah:
Thank you so much. So the reason I'm really excited to have you on today is because I really feel like, besides just getting people into Canada, we need to think about how we can arm them with the skillset that they need.
Evelyn Ackah:
So last time I did a podcast on financial management for newcomers, and it was actually a great podcast because even as a Canadian, I could have learned some things that maybe I'm not doing as best as I can financially. So I'm hoping people will learn from this podcast about what they need to be doing and thinking about in terms of wills and estate. So just to start, let me ask you, Gordon, why did you get into this area?
Gordon Vanderleek:
Yeah, it's interesting. In terms of my legal career, I started out doing business law. It's interesting, over the years, it's migrated more in the wills and estates area. It's always been a nice blend to do that, but I've really enjoyed, probably in the last dozen years, focusing specifically in the wills and estates area.
Gordon Vanderleek:
I think, for me, the attraction is the planning is so rewarding, or even in the complex estates, they're a mess. They come in and you get to bring order to disorder and you could put a plan in place. So if at the end of the day, when I'm seeing a client out the door after a session together and they go, "Oh, I just feel so much more relieved that my documents are in place," then that is just so rewarding, where you know you're making a difference.
Gordon Vanderleek:
So I think what I like about this area of law is you get regular feedback that you're making a difference in people's lives, but I'd like the challenge of taking the complexity of the area and making it simple, and then also dealing with people in some of their most difficult moments.
Gordon Vanderleek:
So I think I think it's a challenge for us as practitioners in those circumstances to be compassionate, empathetic, but to use our knowledge to make a big difference. I find the clients are so helpful if I get a call going, "Okay, my spouse just passed away. What do I do? I have no idea what to do."
Gordon Vanderleek:
There's value in that from a practitioner's perspective, because you do feel like you're making a difference in that person's life. Maybe it's akin to a family lawyer dealing with a breakup. It's a high-stress situation, so you're really feeling like you can make a difference versus, okay, it's a corporate merger.
Evelyn Ackah:
This is why we get into law, you and I, to help people, right?
Gordon Vanderleek:
Exactly. I remember years ago, when I was in ... Or I think it was even as I was thinking of going into law school, or right at the beginning of it, there was a senior lawyer that I knew in my hometown. And so, I remember picking his brain and saying, "Okay, well, asking a similar question. Why did you get into the practice of law?"
Gordon Vanderleek:
What he said really resonated and always stuck with me, going, yeah, there's the intellectual pursuit. The law attracts people who like the intellectual exercise of taking a legal problem and breaking it down and doing the research and the advocacy. He goes, "It's about helping people." he said, "If you want to help people, it's a great profession." I go, "Yeah, I do. That really did motivate me to get into it, to help in that area."
Gordon Vanderleek:
So, yeah, over the years, maybe as you get older, you see this more and more, but really enjoying helping people on the estate side. Certainly, we've seen the growth in the area. The entrepreneur in me says there's a lot of need out there. But I think it's an area where I feel like I'm bringing value in that I'm making a difference by helping people in dealing with disability and what happens on death.
Evelyn Ackah:
Yeah. No, I think it's incredible work you do. Honestly, the reason I wanted to have you on is because we had a client that we brought in. He's a Canadian citizen living in Mexico, had married, had a child in Mexico, and then got sick and they decided to come back to Canada. He had a place in Alberta. He died within six weeks of arrival.
Gordon Vanderleek:
Goodness.
Evelyn Ackah:
It was just tragic. We were helping the wife that didn't speak any English. We found her somebody up in Red Deer that could help and all of those things. I remember thinking this is just so tragic because there's a daughter that doesn't have dad, a husband is gone, but also there's no paperwork.
Evelyn Ackah:
To go through all of the assets and everything, I just thought we've got to figure out how we can provide support when immigrants arrive. You're here now. If you have assets back home and assets here, how do you prepare in case, unfortunately, something will happen?
Evelyn Ackah:
I think COVID has really brought that close to home because I have friends who do what you do in the states and across the country, and they've been helping people, quickly even, with dealing with wills because people have been dying from COVID.
Gordon Vanderleek:
Yes.
Evelyn Ackah:
So for me, it's like this is really important, the work you do, because not everybody realizes when they get to Canada, we should be thinking about a will. I buy a house. I need to think about a will. I have a child. I need to ... So what are the key moments you would say, Gordon, in your life or in the lives of your clients where they should be thinking, "I need to see my wills and estates lawyer," or, "I need to get a will put in place, plus the directives," and when I need to update it?
Gordon Vanderleek:
Right. Well, let's start with the fact that everybody over the age of 18, this is maybe a bit trite coming from a wills and estate lawyer, should have a plan, because when you're 18, the law gives you a whole bundle of rights. You can acquire property. You can, in fact have recognition standing in the eyes of the law. So, therefore, it makes sense to put these documents in place.
Gordon Vanderleek:
With that being said, I don't have a lot of 18-year-olds banging down on my door. People think of it as, "Well, I'll do that when I get old." "When I'm in the later years, well, then I'll start thinking about estate planning." So what we certainly like to preach would be, yeah, everybody should have a plan. You should have it in place.
Gordon Vanderleek:
I think a couple of things about your story. Number one, what's telling there is that you need to know that the laws of the jurisdiction where you're ordinarily resident are going to be applicable. So somebody who was in Mexico, maybe they had a ... It sounds like he didn't have a will down there. But when he moved to Canada, okay, now you're ordinarily resident. I think based on the facts you've given, the laws of Alberta are applicable as well as the Canadian federal law would be applicable.
Gordon Vanderleek:
So I think in a circumstance, to answer your question, where we see people coming would be, number one, when they have their first kid and they realize suddenly, "Oh my goodness, I have this child about to be born. What if something happens to us? We need a guardian. We need a trust for that child. Now we have a dependent. We need to make financial arrangements." That would be one reason.
Gordon Vanderleek:
The acquisition of property, sometimes people go, okay, the joke is when you're maybe 18, you go, "All I have is my student debt. I'm still in school. I haven't accumulated anything." Fair comment. But I think once you start accumulating assets, then people begin to think about, "Well, what happens to this stuff when I pass away?"
Gordon Vanderleek:
So if suddenly they start working, well, now they have insurance for their group insurance plan. They're buying their first condo or they're getting married. That would be another life event where you go, "Okay. Now I have to provide for my spouse," or, "Do I want everything to go to my spouse? I better change things."
Gordon Vanderleek:
So significant life events would be relevant. Getting a large inheritance. Now suddenly it's like, "Okay, I didn't have much, but now I have a bunch, not because I've accumulated but it was gifted to me by my parents or another family member. I better think about what happens."
Gordon Vanderleek:
In general, you would want to make sure that a person's wishes match the legal documents. By that I mean ... Let me look at it from a different angle. The most frustrating cases I'm involved with, frustrating from the perspective of I wish I could have helped, is when we look at what we know to be the person's wishes and we contrast that with the legal result, and there's a mismatch between the two. So we go, okay, on the one hand, I have to sit in a meeting and going, "Well, I know that the deceased person intended this, but, unfortunately, this is the result." There's a mismatch between the two.
Evelyn Ackah:
Yeah, properly.
Gordon Vanderleek:
It would've been so easy to fix it and just if they had a legal document in place. "Well, I want to make provision for my spouse." But what if everything doesn't go to the spouse? Well, that's not what he wanted. Maybe in your case, like that newcomer had a spouse. But what if he had a beneficiary designation on his insurance that named the parents in Mexico?
Evelyn Ackah:
Exactly.
Gordon Vanderleek:
Everybody goes, "Of course he would want to look after his wife," but that's not the legal result. The legal result is it goes to parents. So now are we into a fight about that? You get into all the complexities of estate law. So I think at the end of the day, for somebody who says they have the desire or this is what they would like to have happen in the event of their death, then you want a legal document to carry out those wishes.
Gordon Vanderleek:
So once you start accumulating assets, you have dependence, or if there's a change in those circumstances. Suddenly your spouse has dementia, is disabled, has a stroke. What do we do about that? We have to change the plan. If you have an adult child that suddenly gets a longterm disability, we can't just hand over a bunch of money to that child. That's going to have a negative implication on a whole number of areas. So those are the circumstances that usually motivate people to come in to see a lawyer.
Gordon Vanderleek:
But I guess the last comment in answering your question would be to have the audience recognize that there's a set of default rules in the province of Alberta. This is applicable probably in every state and every province, that if you die without a will, the government says, "Well, these rules apply." We call that the intestacy rules. In Alberta, they're found in the Wills and Succession Act. So they say if an Albertan dies without a will, these rules apply.
Gordon Vanderleek:
The difficulty is that when you review those rules with most people, they might say, "Well, I don't want that." So the will allows you to opt out of it. But I have, in seminars and other teaching moments, said, "Well, everybody actually has a will." If it's 50% of Canadians don't have a will or an updated will, the other 50%, in fact, is written by Edmonton or by the legislature.
Evelyn Ackah:
By the province, yeah.
Gordon Vanderleek:
The province says these rules apply. So what's really important for the audience to hear would be there might actually be a plan you don't even know about. So you should start with saying, "Well, what would happen if I pass away?" You can talk to a lawyer, but I mean a lot of skilled financial planners, accountants would probably understand these rules and can determine are those applicable to you?
Gordon Vanderleek:
But it's a matter of making sure your wishes get carried out. So not only how your property gets distributed, but who's in charge of that. Who do you want to be the executor for that person who passed away? Who should be doing that?
Gordon Vanderleek:
Maybe it's not his wife because she's struggling with language issues and maybe filing tax returns, and going through a court application to the surrogate court would be difficult for her. So maybe there was a friend or a professional or somebody, a trust company, who could help him in that situation while she gained the skills and the comfort level about language.
Gordon Vanderleek:
That would be an example where he could have put a plan in place that maybe would've made things less stressful for his wife, which would include maybe having somebody work together with her or to support her in the work that she's now faced with having to go through and I'm sure creating a lot of stress.
Evelyn Ackah:
For sure. For sure. So, Gordon, I mean thank you for that. So one of the things that people don't, I think, realize too is in addition to the estate planning and wills work, I think one of the most significant parts of the work that you do that we've done as a family too is around issues of guardianship with children, who's going to be involved and who's going to help if something happens, but also the piece on directives. What do you want?
Evelyn Ackah:
For instance, personally, I have a godmother and she doesn't have children. I'm basically her child. She's 83, almost. We spent all this year, since she's now a widow in the last year and a half ... She's done all this stuff because she wants to make sure I'm her executor. She wants to make sure her step-kids ... They're grownups, of course, that there's no conflict. So she needs a third-party like me, who's not related, but has been a family member for all these years, helping her.
Evelyn Ackah:
Then she's also come up with, I want you to make the decision about what happens to my healthcare." And so, it's been interesting because every time I go home, there's another piece of paper that needs to be presented.
Evelyn Ackah:
How does that work? Obviously briefly, because I don't expect you to give details, because I know when people need this, they need to come and see you and to pay you for your time, but also to get the fulsome advice. But what generally do you provide in terms of disability, guardianship, directives?
Gordon Vanderleek:
Okay. So the first point, if you have minor children, there would be providing a plan for guardianship in the will. So that would be if your child is below the age of 18, you get to handpick the guardian. At the end of the day, the courts have jurisdiction for appointing the guardian. But probably 99% of the time, we'll follow what a parent decides. But it avoids any fighting about who's going to look after Johnny if Johnny's below the age of 18.
Gordon Vanderleek:
Point number two is in relation to the personal directive. That's where it brings up the area of planning for disability. So under Alberta law, you can plan for two things. What happens on death? What happens in the event of disability? Under disability, there's two documents. There's the power of attorney that deals with financial matters and then there's the personal directive that deals with healthcare matters. So who's going to talk to the doctors and nurses?
Gordon Vanderleek:
So what you cite in terms of the personal directive is hugely important. Arguably, since the pandemic, this is something we've been seeing people more concerned about because they're thinking, "Okay, what if I end up on a ventilator in the hospital because of COVID? Who's going to be talking to the doctors and nurses?" Even younger people thinking, or middle aged people going, "Well, that could happen to me," even though most of the time you think about, "Well, that's when I'm in my 70s or 80s or 90s I have to deal with that. But people are going, "This could happen to me in my 40s, 50s, 60s, or even younger. We see COVID being somewhat indiscriminate with regard to age.
Gordon Vanderleek:
So if you're going to do nothing else on the estate planning side, you might say, "Well, I don't have that many assets to worry about on the estate." It's a very real concern to say, "I want my personal directive in place." So you get to handpick who makes those decisions, who talks to the doctors and nurses, and then when does it get activated. You can set out your wishes, saying do not resuscitate and do all those sorts of things. So that's a hugely important document is the personal directive.
Gordon Vanderleek:
The close cousin to that is the power of attorney. If you're incapacitated, who's going to manage your finances? Of course there's been ... I mean I don't think this is so much due to COVID, but there's an increasing amount of elder abuse and people taking advantage of people's property and not doing the right thing.
Gordon Vanderleek:
So having the right systems in place in terms of your money is managed. So if you come out of that incapacity, you recover from the coma in the hospital, you don't want to see your bank accounts cleaned out because the wrong person has been managing it. So managing those finances become important. So that's applicable in the event of disability.
Gordon Vanderleek:
The third thing that you touched on in your question would what about guardianship and trusteeship? So here's the short answer under Alberta law. If you don't do a personal directive, I've got to get on the webcam and get in front of a judge on Webex and go get a guardianship order. It's a big, thick application. I need medical evidence and it's complicated. If you don't have a power of attorney, I have to go get a trusteeship order.
Gordon Vanderleek:
So for those who cannot sign their own legal documents, there's a recourse, but it's an expensive one. It means I've got to go to court and apply to name the person to be the decision-maker in those circumstances.
Gordon Vanderleek:
So I often say to people, and it pretty much is this, is it's at a zero. It's more complicated. We measure those applications for guardianship and trusteeship in the context of the thousands of dollars versus the hundreds of dollars if you did it yourself. So it is at a zero from a legal cost.
Gordon Vanderleek:
So from a financial perspective, it's one of the best values a lawyer can provide, a wills and estates lawyer can provide, is by putting a power of attorney and a personal directive in place. In fact, in some cases, that should be the first priority, not the will. But people think about the will.
Evelyn Ackah:
Yeah, I hear you.
Gordon Vanderleek:
But getting that in place because bang for the buck and carrying out your wishes. When your friend that you gave the example of, if that person was sick for a period of time before they passed away, who was talking to the doctors and nurses? They're going to ask him, "Where's your personal directive?" If there is no personal directive, they go, "We don't know who to talk to. Go get a court order."
Gordon Vanderleek:
Well, now this is going to take weeks, if not months. It could be contested. It's going to get expensive. So really having that in place is hugely important.
Gordon Vanderleek:
So now if you have a disabled child, there's a whole conversation about guardianship and trusteeship that you may not have a choice. If you have a child with Down syndrome that was there from birth, they could never do a power of attorney and a personal directive. So there's no recourse, but to get those in place when they turn 18.
Gordon Vanderleek:
But for adults who haven't done their estate planning, there is a solution. It's the guardianship and trusteeship problem, but it potentially could open up a Pandora's box of not only a legal procedure and the expense associated with that and the delay, but also the possibility that things are ... There's a fight.
Gordon Vanderleek:
What if somebody challenges the wife's authority to become the decision-maker for her husband, the newcomer to Canada? There's a brother that comes in and say, "No, no, no. I want to look after my brother. You're not competent to do that. I think I should be the one. I know his wishes."
Gordon Vanderleek:
Well, okay, now everyone's lawyering up and we're into the potentially tens of thousands of dollars in legal cost to solve that problem, all of which can be avoided with a few hundred dollars to get the paperwork in place. But it really requires people to do the advanced planning.
Evelyn Ackah:
Yeah, I agree.
Gordon Vanderleek:
It requires people to say, "I'm going to get my affairs in order. I'm going to have that in place."
Evelyn Ackah:
Well, no, I think it's all such good advice, Gordon. I mean somebody recently asked me for a referral to a wills and estates lawyer, and I gave them your name, of course. Then I got something back like, "Oh, what about I just pull one of these wills packages?" I was like, "No." I said, "Seriously? That is not worth the paper it's written on." I don't even know what they look like, but I've seen them in Staples or whatever.
Evelyn Ackah:
I think to myself, "Do you not think your house, your car, your assets, whatever, even if you have older children, don't you think planning is value for money to get this done? I was shocked that you're driving a very expensive car and you're going to come and tell me that you don't want to spend a few thousand bucks or whatever on getting something done right instead of picking up on those wills for you.
Evelyn Ackah:
So tell me about that. I mean, in our practice, everybody's always selling the lowest denominator and they don't recognize the value or the mess that's created if they don't do it right. Have you seen that in your practice, Gordon?
Gordon Vanderleek:
Yeah. Great question. I have. So let's touch on a few things there. Under Alberta law, you can actually do a will in your own handwriting. We call that a holograph will. Now not in every province. In some provinces, they're not recognized. But in Alberta, it is. So if somebody writes out their wishes and signs their name on it, you could argue that's a legally enforceable document.
Gordon Vanderleek:
It's interesting. I had a case where somebody did a suicide note that had a testamentary component to it. I got it admitted into probate as a valid will.
Gordon Vanderleek:
So sometimes you get these cases where that could happen, but I mean I guess better than nothing. If you're about to board the plane and you say, "Shoot, I don't have a will," I mean better to express your wishes in some manner.
Gordon Vanderleek:
With that being said, in 33 years of practice, I can say, unequivocally, every single holograph, homemade will that I've seen, there's been a problem.
Evelyn Ackah:
Wow.
Gordon Vanderleek:
Maybe the ones that were fine don't come to me to solve because they were able to handle it themselves. But, generally speaking, it's a fair assumption to say that if you do it yourself, there's going to be a problem. I think it's equivalent to me trying to do my own dentistry. Could I get a drill out and drill out that cavity and try to fill it myself? Probably not. That's probably not wise.
Gordon Vanderleek:
Or sometimes if I try to fix my car, if I open it and look at all the electronics inside, I go, "No, I'm just going to bring it to the mechanic." It's not worth me saving a hundred dollars to do an oil lube and filter. I'm going to give it to the mechanic because the consequences of doing it wrong are great. I don't want to blow up the engine. It cost me $5,000 to replace the engine because I messed it up because I saved a hundred dollars. That that doesn't make sense.
Gordon Vanderleek:
It's somewhat equivalent in the estates area that people will save the hundreds of dollars, but they lose the thousands. Now that's not on every single case, but that's the litigation cases or the cases where there's increased legal costs associated with fixing the problem. It's usually because they didn't do the planning or they did it poorly.
Gordon Vanderleek:
So what we try to advocate is to say, "Listen, everybody needs a plan. Get a plan in place." It's not something you have to pay for every six months. I mean you do it and probably most people are good. I mean I always say plan for the next three to five years. I had somebody come in the other day and it was about eight years ago that we did their will and time for an update. So you might get that mileage out of it. So it's something you have to do every now and then.
Gordon Vanderleek:
I think you just budget for it, going that's just a cost of living is planning for dying or just being disabled, and you do it every now and then. The benefit of spending the money and doing the planning is, number one, you don't have to worry about it.
Gordon Vanderleek:
Much like when I bring the car away and the mechanic says it's running great, I don't even know what they did. But when I drive away, I go, "Okay, I can trust my vehicle. I'm not going to be stranded in the mountains when I take my family for a ski trip. I have confidence the car is going to work," much the same way. Hopefully what we can deliver to the clients is going there's a good plan and the legal documents are in place to carry out your wishes. So you don't have to worry about that.
Gordon Vanderleek:
It's a real gift to those that survive that are in the midst of grieving have to deal with the legal and accounting issues associated with estate administration and the tax planning and/or the tax consequences of dying. So that's what we help clients through and identify the issues and put a plan in place to give them that peace of mind so they don't have to worry about it, because that's really the benefit.
Gordon Vanderleek:
Well, I'll end the answer with this, is spending the money is, yes, you get the legal documents. Yes, you can go to the registry office, and I've seen them there myself, the 39-99 kit. But I would challenge to say does that really give you peace of mind? What's that worth?
Gordon Vanderleek:
Really, an average estate can be in the hundreds, if not into the millions of dollars. If you look at insurance, the equity in your home, the RSP, you've got a $200,000 life insurance policy, it adds up very quickly. There's a lot of money there. What's it worth to protect that to avoid the negative consequences? Hopefully there's a value proposition there that we can convince a client to say it's worth it, but it's really that peace of mind that we deliver.
Gordon Vanderleek:
I think that's a small price to pay to say every three to five years, you've got to do a check-in. We do that annually with our doctors. We go for a check-in.
Evelyn Ackah:
Yeah. Absolutely.
Gordon Vanderleek:
You don't go to the guy in the corner who pretends to be a doctor. You go to the professional. Hopefully we can give that peace of mind, but also we can be there for the family when something happens.
Evelyn Ackah:
Exactly. So there's already that relationship so that if something happens, they know. Even if they don't know where anything is, they call you because they know you. I don't know what you do in a case where just a paper package, you put it somewhere and nobody knows where it is. I'm with you completely. I think you get what you pay for.
Evelyn Ackah:
I tell clients that on the immigration side. If you want to do it and then you make a mistake and it's wrong, now you come back, I have to fix the mistake. It's going to cost more to fix a mistake.
Gordon Vanderleek:
Right. It's that peace of mind to know that when I hit the border, I'm going to get through okay.
Evelyn Ackah:
Absolutely.
Gordon Vanderleek:
That's the value you bring, -
Evelyn Ackah:
That's it.
Gordon Vanderleek:
... peace of mind, right?
Evelyn Ackah:
Yeah. I love that.
Gordon Vanderleek:
Yeah. It was interesting. Just more recently, I had a client say ... We went through the will. There were some complications, a little bit of specialized planning we had to do in terms of trusts. But what he said really resonated with me. He goes, "You know what? Yes, I know I need this in place, but you know the real value, Gord, is I found you. I like you. Now I know my kids have somebody they can go to if something untimely happens to me."
Gordon Vanderleek:
It really struck me because I mean they don't teach you that at law school, but it was really interesting to hear that, is to be able to say that was this peace of mind, is there was a professional who's going to help his kids and have his back when his family's going to be in probably the greatest amount of stress.
Evelyn Ackah:
Yeah. I remember-
Gordon Vanderleek:
It happens to both of them or-
Evelyn Ackah:
Exactly.
Gordon Vanderleek:
... "My wife knows where to go if something happens to me, or if something happens to her, I've got somebody to turn to. My kids have somebody to turn to." So I was reminded of that more recently. Maybe as a professional, you tend to downplay it. But I think that is value to a client is-
Evelyn Ackah:
Totally.
Gordon Vanderleek:
... we can be there. That's why we have a firm. It's more than just me. We want to carry on and we want to be there for the next generation of people.
Evelyn Ackah:
Yeah. No, I totally agree. I mean one of my questions is around, right now, this whole Britney Spears thing, and this is just pop culture, but it's been fascinating to be watching the crazy and all of that. But just any thoughts on this whole idea of adult guardianship?
Evelyn Ackah:
I mean nobody will ever truly know what took place, but there's something there that just feels ... Whether she has some mental disabilities or whatever the case was, even if it started from a place of goodwill and it somehow it changed. I just feel like everybody's now focused on guardianship in a way, that adult guardianship, and I think it's making people more sensitive to this issue. Any thoughts on that just from ... Of course, you don't know the details either, but ...
Gordon Vanderleek:
Yeah. Well, it's interesting on that ... I think it may serve in that role much like there's been certain cases that have hit the media and it gets people thinking about things. I think years ago, there was that case in the states where somebody was on life support and the family was fighting with the spouse about whether to put take the person off of life support and went through the courts and all the rest of it. So it made people more think about healthcare directives and all the rest of it.
Gordon Vanderleek:
So perhaps for those that are following it, and obviously she's a recognizable name ... And I think most people go, "What do you mean she couldn't make decisions for herself?" Now I mean in California, there's specific rules and I did a little bit of looking into it. I think what she had was called a general probate conservatorship. So it's different than Alberta law.
Gordon Vanderleek:
But what's similar is that somebody was making decisions on her behalf and in fact getting paid for it. I think her father was taking like $16,000 a month to manage it and even saying, "Well, you can't have a cellphone and you can't do this and you can't do that," and managing it. So obviously the laws there are very specific and different than what they are in Alberta.
Gordon Vanderleek:
But it does bring up the point of saying if I get to a point where I can't make a decision for myself, and leaving aside whether that was appropriate in Britney's case or not, that's now at an end, a couple things come up. Number one is there is a process where somebody could be appointed to make a decision on your behalf, whether you like it or not.
Gordon Vanderleek:
That's why we do powers of attorney and personal directives, because once a court order is in place, that person has the authority. During the conservatorship for Britney, I would assume the legal documents gave father full authority to do what he did.
Evelyn Ackah:
Of course.
Gordon Vanderleek:
Now they ended it saying it's not applicable anymore, but that raises the second point is that ultimately those matters are reviewed by the court and the court is ultimately there to resolve those kinds of disputes.
Gordon Vanderleek:
With that being said, it would be really curious to say what are the amount of legal fees that were spent and the amount of years of fighting, let alone how she felt as a human being, as a woman, to say, "I've got somebody else. I can't even make my own decision." I think she's certainly quoted in the media saying, "Well, I don't even know what cash looks like. Now I have it." It means she couldn't even go to the ATM and take money out and spend it.
Evelyn Ackah:
Yeah. Wow.
Gordon Vanderleek:
So it sounds like it was pretty extreme and maybe appropriate that it ended. But I guess the point being is that in our lifetime, we can do planning to ensure the right people are managing our finances-
Evelyn Ackah:
Exactly.
Gordon Vanderleek:
... and making decisions on our behalf. We want to maintain control for as long as we can in the context of having her full faculties and making her own decisions. But if you get to a point where you can't, the law allows you, while you have your full faculties, to appoint the right people.
Gordon Vanderleek:
What we see happening is more and where people are concerned about having the right choices. We're getting into deeper conversations about, well, who should be on the power of attorney? Maybe it should be a joint appointment. Is there an accountability we build in? When does it get activated? I want this person to make the decision whether I lose capacity, or here's the standard for activation.
Gordon Vanderleek:
So I think those are ... To the extent that a case like this prompts a conversation about saying, "Well, I don't want something like that to happen to me," the wrong person get appointed, looking at it from Britney's perspective-
Evelyn Ackah:
Yeah, yeah. Of course.
Gordon Vanderleek:
... who was probably the wrong person who was doing the wrong things, that requires some advanced planning. So to that extent, maybe even on the financial side of things, saying if I come into wealth or whatever I have, I want the right person to manage that on my behalf.
Evelyn Ackah:
Manage it, yeah.
Gordon Vanderleek:
Also, that you have the right to control it or to terminate that. You can build in those protections with the right amount of planning.
Evelyn Ackah:
Gordon, I think this situation has just had such a groundswell that I think for you, you need to write a piece about it, because even though it's different and we're not in California, I think it's certainly a cautionary tale. It's the idea that maybe she wasn't mentally able to do anything and prepare. With all the money she had, she might not have had a will. She was still quite young when all of this took place.
Gordon Vanderleek:
Absolutely.
Evelyn Ackah:
But I think it's a very, very important lesson of planning ahead before you need it. It's almost like right now, there's the whole right to die and all the rules around it. I'm not going to get into that with you so much, but I feel like the whole issue seems to be you need to be conscious of making a decision and competent of making a decision, because once you're no longer competent, you can't make the decision.
Evelyn Ackah:
That's exactly what took place here. I feel like more and more people need to recognize we need to plan. You never know, God forbid, something happens. You're in the car, you get in an accident, you don't have a plan.
Evelyn Ackah:
So to me, the value of the wills and estates partner, a lawyer that you work with, that grows with you and your family as time goes by, is that you already have that, because you keep saying peace of mind. But you have a plan in place when you're conscious and aware that I feel like is invaluable.
Gordon Vanderleek:
It'd be interesting. If you look at the Britney Spears situation, if she had a plan in place or knowing, "Okay, I'm coming into some wealth. Maybe it's my dad working with somebody else." Maybe there's some accountability. When does it get terminated? You could set out the compensation.
Gordon Vanderleek:
So you're right. If you do things in advance, it's generally a better result because you've had control over it. It reflects your wishes and what's important to you. But it does require people to come in and do that ahead of time. That's always the hard part, to say, "Well, I'll deal with that next month."
Evelyn Ackah:
Exactly.
Gordon Vanderleek:
A lot of people know, "Yes, I need a will." You don't have to convince them of that. It's just they don't know who to go to. They don't know what they need to think about. So really just encouraging, whether it's about planning for disability or getting a will in place what happens on death, is really encouraged, the listeners, to say take whatever the next step is.
Gordon Vanderleek:
That's what I always encourage. You don't have to get it done overnight. But if you say, "What's the next step?" Well, take that one step. It might be relisten to this podcast. It might be get online and go to some trusted sources and read some articles. It might be find a lawyer who will give a free consultation, or it may be talk to my financial planner. It could be, "What about talk to my accountant about my business and what would happen?" Figuring out, "Well, if I do nothing, what's the result? That's a good starting point-
Evelyn Ackah:
Right.
Gordon Vanderleek:
... and get those facts. It may be the next step is, "I've got to talk to my spouse about this, or my adult children."
Evelyn Ackah:
Yes.
Gordon Vanderleek:
"Let's have a family discussion about this." So the next step is not always go to a lawyer. I mean maybe. I'm not excluding that. But whatever that next step is, assuming we're going to tackle the problem incrementally, take that one next step. So just take a moment and think about what's that next thing I could do to move the needle forward a little bit closer to having everything done, because sometimes it seems overwhelming. I don't even know where to start. I don't know what to do.
Gordon Vanderleek:
Well, it might be, well, talk to somebody about it. Talk to a trusted advisor. Where do I go? Do I need to listen to more podcasts on estate planning? Do I need to research Alberta law or the law of the state or province you're applicable? "I trust Evelyn. Maybe she has some ideas of what I should consider."
Evelyn Ackah:
Or Gordon.
Gordon Vanderleek:
Those are the things to do.
Evelyn Ackah:
Yeah, no, I hear you. And so, I really appreciate this, Gordon. I mean this has been really, really entertaining in the sense that you're giving us great information. You're clearly passionate about what you do, which is what I love about you.
Gordon Vanderleek:
Thank you.
Evelyn Ackah:
One thing that you and I both have in common, besides running our own business, is we're also adoptive parents. I feel like there's just a certain compassion that comes with choosing this is how you're creating your family. So I mean my kid's now 10. Oh my goodness. 10 and a half. I met you and they just arrived. It has just been the joy of my life. I know you and your wife have also adopted.
Evelyn Ackah:
So I feel like when you have somebody in your corner who has that background, the family is first, it's not just lawyering. It's very much about you understand that when we're parents, however we become parents, there's responsibility.
Evelyn Ackah:
One thing I always remember, you know too, I'm sure, the level of scrutiny that goes into becoming an adoptive parent is just like ... It's like the FBI level. I always say a 15-year-old can go and have a baby just like that and done. But those of us who are choosing to go through the route of adoption, from a wills and estates perspective, but even just from the process, they really have to want to be committed to it.
Evelyn Ackah:
And so, I just want to give you those props. Thank you so much for the support that you've provided to me. I know that you also have children that are disabled. So can you just give us a little bit of ... For instance, how would somebody who has a disabled child, adult children, prepare, because that's obviously something that you and your wife have put in place? She's written a book about it. This is a real passion for you both.
Gordon Vanderleek:
Yeah, it's true. That's an area that's grown, that we do work specifically in the area of estate planning for children that have special needs, or anyone who has a family member who has a longterm disability. So, yeah, we've been there, done that.
Gordon Vanderleek:
We help a lot of families at the point of transition, when that child is turning adult, when they're turning 18 in Alberta, and helping them through that transition for the different support services in place, making sure they have everything that they need and all the legal paperwork is in place, because there's some very specialized planning that has to be in place for that child.
Gordon Vanderleek:
We have a program in Alberta called Assured Income for the Severely Handicapped, or AISH is the short form. I think in every province, there's a program to provide support for people who can't work due to a disability. But it becomes very important about how you gift money to people because there's an asset and an income test for those programs. So we help people navigate that whole process and set up the trust and put that in place.
Gordon Vanderleek:
It is a passion project of us. I mean we live it as parents. And so, we want to help other people in that scenario. So, yeah, thank you for your kind words on that. We do like what we do and plan on ... Keep doing it for a long time and are working actively.
Gordon Vanderleek:
Our hope and desire is that the services we provide can carry on beyond our working careers so that we're building a team that could be there for the next generation, because I think it's going to be a big issue. For example, siblings that have to look after their disabled brother or sister when parents are gone. What happens there? It's a complicated area.
Gordon Vanderleek:
Thankfully, we live in a province that is generous, I think, on a large part for having different programs in place. But we want to have the parents access those programs and then make sure, through a planning process, they retain those programs and don't inadvertently lose it. For example, if they leave a financial legacy, a gift, to their child and lose those government supports because they didn't do the proper planning. Then we get into guardianship and trusteeship and who's going to look after the child when they're gone. So that's the life that we've lived-
Evelyn Ackah:
Wow.
Gordon Vanderleek:
... and we find increasing specialization in that area. But we enjoy it and we love working with parents who've adopted or have a disabled family member. The caregivers and what they go through, the stories that we hear, they're just Herculean efforts that they do to look after those. So it's certainly our honour and privilege to support them in whatever way we can on the legal side of it, as well as getting them whatever supports they need to help them in that situation.
Evelyn Ackah:
I think it's just incredible work. I just want to thank you so much, Gordon for a fabulous conversation.
Gordon Vanderleek:
Yes, and I always enjoy our conversations. I look forward to the next time we can-
Evelyn Ackah:
Yes. We need some lunch and wine too, so we can commiserate now that we can see each other socially after COVID. I want to thank you so much for being on the Ask Canadian Immigration Lawyer podcast. I look forward to learning more and referring more files and work the best way I can.
Evelyn Ackah:
I think you've really made the point about how important it is to get professional help and to make sure that your plans and desires are manifested on paper and that are legal. And so, thank you so much, Gordon. You were great.
Gordon Vanderleek:
Thank you, Evelyn. My pleasure. Thank you too for what you do on your podcast. I know you're active on social media. You take seriously public education and getting messages out there. You're to be commended for your work. I always say you set the standard to which we all aspire as lawyers-
Evelyn Ackah:
Oh my god.
Gordon Vanderleek:
... as far as being out there and getting messages out in your practice area, in your little part of the world. I know you're trying to make an impact and help people as well. So thank you for the work, and this podcast. I think that's a great initiative.
Evelyn Ackah:
Thank you.
