Monthly Archives: September 2014

When we are not practicing law …

There has long been an expectation that, having been given the privilege of being a member of the legal profession, lawyers should give back to their community.

At Patriot Law Group, all of our lawyers are encouraged to get involved in activities beyond the day-to-day practice of law.  Here are some of these “other things” we are doing right now:

  1. Both Ed and Michelle serve as officers in our local Chamber of Commerce, helping provide both the strategic direction and day-to-day support to this group representing business in the community.
  2. Michelle has extensive Board leadership experience.  In addition to the Chamber of Commerce position noted above, she is also the Chairman of the Board of  West Parkland Gas Co-op Ltd (one of the larger gas cooperatives in Alberta), a member of the Board of Governors of the Alberta Division of the Canadian Corps of Commissionaires, and she has recently been recruited to be a member of the Board of Directors of the Legal Education Society of Alberta.
  3. Brian is Vice-Chairman of the Canadian Bar Association’ (Alberta Branch) Solo, Small and General Practice section for Northern Alberta, where he provides leadership in the professional development of, and support to, lawyers with small firms like our own.
  4. Ed teaches a course in law to students at the University of Alberta School of Business each winter.  In January 2015, he will commence his 10th year in this role.
  5. Ed is also on the Council of the Canadian Bar Association (Alberta Branch) as well as the Executive Committee of the Onoway Branch of the Royal Canadian Legion, Canada’s largest veteran’s organization.

So while our day at the office may end at 5:00 PM, these outside activities keep us pretty busy on evenings and weekends as well.  But we feel strongly that doing these additional things helps make us better lawyers by broadening our skill sets and experience outside of the law.

Why you need independent legal advice for a separation agreement

We often have clients arrive at our office with settlement agreements in various stages of completion. “We’re in agreement on everything,” they say, “We agree on where the kids will stay, access, support, spousal support and we each already have what we want out of our property.” The client (quite rightly) feels that they’ve done the heavy lifting by coming to a lawyer with an agreement in hand, so they are sometimes a little confused when we tell them that both spouses will need to get independent legal advice regarding the agreement. Why can’t the lawyer just finalize this deal that each spouse has clearly agreed to? Why do the spouses need “advice” when they’re in agreement already?

First, there’s the formal requirement for it. In Alberta, the Matrimonial Property Act requires that any binding agreement between spouses regarding the matrimonial property contains a written acknowledgement by both spouses that they each understand the nature and effect of the agreement, that they understand the claims they each have and each may be giving up under the agreement and that they each signed voluntarily. This acknowledgement must be signed in front of a lawyer.

Second, there’s the substantive requirements, which are pretty clearly laid out by the requirements of an acknowledgement in the Matrimonial Property Act but apply universally:

  1. You need to understand the terms of the agreement you’re signing. You need to know what each provision means for you and your spouse. You need to understand your rights and obligations (and those of your spouse) as written in the agreement.
  2. You need to understand what is available to you (within the limits of the law) and what you’re getting and giving up. You don’t have to take everything you’re entitled to. You can agree to whatever you wish but it needs to be an informed decision.
  3. You need to be willing to sign the agreement. An agreement that is coerced or forced is no agreement at all.

Your lawyer can provide you with the information you need to ensure you understand how your agreement works and what your options are under the law. Moreover, having independent legal advice can ensure that you aren’t forced into signing an agreement you don’t understand or don’t accept.

Finally, there’s the follow-on protection of independent legal advice: it stops either party from complaining about the agreement later. When each spouse has had independent legal advice, the agreement is binding. Neither spouse can re-open the settlement agreement months or years after the fact because they have changed their mind and decided they no longer like the terms. Independent legal advice ensures that your agreement sticks.

With each party getting independent legal advice, you ensure that your agreement is understood, is fair and was entered into voluntarily.

What is a “Notary” and why do I need one?

We frequently have inquiries from people about needing a “Notary”.  People are often unsure about what exactly a Notary is and what a Notary does.

The official title for a Notary is “Notary Public.”    In Alberta, the Notaries Public Act is the statute the confirms how Notaries may be appointed.  It also confirms what people are automatically Notaries by virtue of their profession or position.

In Alberta, a person may apply to be appointed as a Notary Public.  The application has to be approved by the government.

However, the following persons are automatically Notaries by virtue of their profession or position:

  1. All practicing lawyers and all students-at-law;
  2. All judges of the Provincial Court of Alberta, all justices of the Court of Queen’s Bench and Court of Appeal of Alberta, and all masters in chambers of the Court of Queen’s Bench of Alberta;
  3.  All Members of Parliament from Alberta;
  4. All Members of the Legislative Assembly of Alberta; and
  5. All Senators who, at the time of appointment, were resident in Alberta.

So, what can a Notary Public do? The most common tasks for Notaries in Alberta involve administering oaths and taking affidavits or declarations, and making notarial copies of documents (usually so that a copy of the document may be used for some official purpose in place of the original).  In addition, persons in Alberta who sign Personal Guarantees (basically, guaranteeing the repayment of a debt for a third-party) are required to appear before a Notary Public to seek a certification from the Notary that confirms that the person granting the Personal Guarantee understands the significant obligations involved.

There is more to the task of being a Notary than simply signing documents and affixing a notarial seal.  Before “notarizing” a document, Notaries must (among other things):

  1. take steps to confirm the identity of persons seeking their services,
  2. ensure proper protocol is adhered to in the administration of oaths and declarations, and
  3. take steps to confirm the validity of any original documentation for which a notarial copy is requested.

These steps are extremely important since the signature and seal of a Notary Public will be relied upon for many official and important purposes.

Of course, we provide the full range of Notary Public services at Patriot Law Group.

The Difference between having a Will and having an Estate Plan

estate planMost people know that a Will is something you should have so that your estate (the stuff you leave behind after you die) is dealt with in accordance with your wishes.  And while having a Will is definitely better than not having one, it is only a small part of what a person needs.

When death or physical or mental incapacity occurs, it is always a shock and quite upsetting, regardless of whether we saw it coming or it happens suddenly.  Having a plan does not remove this shock and upset, but it does smooth the way ahead by removing the uncertainty about what comes after.  Lawyers call this an estate plan.

Here are just some of the issues to be considered in thinking about death or incapacity:

  1. Who should make decisions for you if you become physically or mentally unable to make decisions for yourself?
  2. Where do you want to live if you become incapacitated?  Some people want to continue to live at home for as long as possible.
  3. How do you want your property and money handled if you are incapacitated?
  4. What are your priorities for your medical care if you are incapacitated?  What do you want done if you may recover?  What about if recovery is not likely?
  5. When you die, who should be responsible for administering your estate?
  6. Do you have money set aside to pay your debts?  If not, do you have any priorities as to what assets should be used for this purpose?
  7. If you own a business, should it continue or should it be shut down if something happens to you? If it is to continue, who will run it?  How do you envision the transition to new leadership?
  8. If you die or become incapacitated, how do you want your home dealt with?  Should it be transferred to someone else, sold or rented out?

When you have some answers to these questions, then you are ready to make a plan.  The three main components of an effective estate plan are:

  1. Power of Attorney.  This document gives another person authority to manage your property and finances if you become incapacitated.  This can include the power to deal with real estate that you own, as well as corporate interests.
  2. Personal Directive.  This document (sometimes referred to as a “Living Will” or an “Advanced Medical Directive”) provides instructions relating to medical care and other personal matters such as where you may want to live and what type of care you want, and don’t want,  if you become incapacitated.
  3. Will.  This disposes of your property after death, to the people that you want to benefit.  It can deal with a wide variety of issues such as businesses, creating trusts for minors, dealing with blended family situations, and so on.

Key to an effective estate plan is having all of these documents designed to mesh together to ensure that your priorities are respected and maintained.  A wide range of possible contingencies are considered and planned for so that you have comprehensive coverage and peace of mind.

The people that should participate in developing an estate plan include:

  1. Your lawyer, who can prepare the key documents noted above, as well as complementary documents such a corporate agreements to deal with the business aspects of death or incapacity.
  2. An accountant, who can discuss with you the tax implications of various options available to you for dealing with your assets during your lifetime and following death.
  3. An insurance broker, who can help you explore the options available for income replacement in the event of disability, and lump sum monies available to pay debts or provide for others in the event of death.
  4. A financial adviser, who can help you to invest to meet your financial goals, diversify and maximize the return on your investments at a level of risk with which you are comfortable.

At Patriot Law Group, we are poised to assist in the creation of estate plans, and to put you into contact with any of the types of professionals about that you may need to assist you.

Posted by Ed Gallagher