Monthly Archives: June 2015

Legal services provided on a “limited scope”

When you are involvedHandshake in a legal dispute – be it a divorce, the breach of a contract or a wrongful termination from employment – the path to resolution can be lengthy. Many lawyers (and clients, for that matter)  think of legal services being delivered in this type of situation over a significant span of time, where the lawyer advises and represents the client throughout the process of resolving a dispute.  But not all clients want, or can afford, legal services provided in this way.

Some clients would prefer it if they could retain a lawyer to help with just one  aspect (or a few aspects) of their legal problem, while the client does the rest.  Alternatively, the client would prefer to actively control the conduct of the case, and determine if, when and in what circumstances legal advice or skills is necessary.   In order words, the client wants a more limited range of legal services to be provided by the lawyer.

This type of delivery of legal services is referred to by lawyers using various terms:  “limited scope” legal services, “brief legal services” and “unbundled legal services”.  The concept is that a client decides to retain the lawyer to perform only certain very specific legal services.  The client is responsible for everything else.  Another way to think of it is that a person is generally self-represented, but retains a lawyer to assist with those portions of the matter where the lawyer can most effectively assist the client, but within the client’s limited budget.

Here are just a few of the things that a lawyer can do on a limited scope basis:

  • Meet with a client to provide an initial assessment and explanation of the client’s general legal situation.  The client is obtaining an understanding of the law as it applies to his or her factual situation.
  • Write a “demand letter”.  The client uses the lawyer’s skills of knowledge, persuasion and determination to attempt to resolve a dispute at the earliest possible point.
  • Assist a client in drafting court documents.  The client is tapping into the knowledge and experience that a lawyer has in properly presenting evidence to be used in a court process.
  • Assist a client in a specific court appearance.  The client is leveraging the lawyer’s skill in advocating on behalf of the client in an environment (the court room) in which few non-lawyers are comfortable.
  • Research a point of law.  The client gets a thorough review of the law that applies to the client’s facts, summarized so that the client can thoroughly understand the law – or a part of the law – that applies to his or her individual circumstances.  This helps with effective decision-making.

It is important to note that the high degree of competence, diligence and ethical behavior required by lawyers are not reduced in any way when legal services are delivered on a limited scope basis.  All that is different is the scope – the range and duration – of the services to be delivered by the lawyer.

Not all lawyers are comfortable with providing limited scope legal services, just as not all clients are well suited to receiving limited scope legal services.  What is important to understand, however, is that it is an option that is appropriate for some clients in some circumstances.

If you think that limited scope legal services might be right for you, talk to your lawyer about it.  If your lawyer does not do limited scope work, then ask for a referral to a lawyer who does this type of work.  When enough clients start asking for limited scope legal services, lawyers will meet the demand.

At Patriot Law Group, we offer the option of limited scope legal services when they are appropriate to both the situation and the client.

 

Some Basic Information on Dividing Matrimonial Property

CautionsignMPA

When married couples decide to part ways, one of the things that needs to be determined is what to do with all of the stuff that they’ve amassed during the relationship.

In Canada, the law of divorce falls within the federal sphere of power but the division of a married couple’s property is governed by provincial law. In Alberta, that law is the Matrimonial Property Act (MPA). The MPA empowers a court to distribute the property owned by either or both of the spouses.

(The MPA does not apply to unmarried couples. We will discuss how property for unmarried or “common law” couples gets divided in a future blog post. Stay tuned!)

The general concept is that spouses are financial partners in a marriage and, broadly speaking, each spouse has a claim to half of the value of the property that the couple acquired during the marriage. This means that it usually doesn’t matter whether a car is registered in only one spouse’s name or whether the home the couple lives in has only one name on the title – each spouse has a claim to half the value of that property if it was acquired during the marriage.

However, not all property owned by a spouse is necessarily subject to an equal split. The MPA identifies three broad categories of property and how they are dealt with:

1) Exempt Property. Certain property is exempt from being distributed as matrimonial property, based on the idea that not all property falls within the financial partnership of a marriage. This category includes gifts from third parties, inheritances, property that was owned before the marriage, awards for damages (such as an award in a slip-and-fall lawsuit) and proceeds of certain insurance policies. The value of the property at the date of the marriage or at the date the thing was acquired (whichever is later) is exempt from distribution.

2) Increases in the Value of Exempt Assets. The court must order a “just and equitable” distribution of property for the increase in value of an exempt asset or the income generated by an exempt asset for the period of the marriage. For example, the value of a collectible car owned by one spouse before the marriage is exempt, but the increase in its value over the course of the marriage – the accrued equity – is subject to a “just and equitable” division (which is not necessarily 50/50). Determining what is “just and equitable” requires the court to consider a variety of specific factors. For example, one such factor that the court will consider is any contribution (financial or otherwise) made by a spouse (or on behalf of spouse) in relation to the acquisition, conservation or improvement of the property.

3) Everything Else. If the property does not fall into the first two categories, then its value is subject to division between the parties. This is typically an even-steven split but it doesn’t have to be, if the court thinks that an even split would actually be unfair.

Most of the time, couples are able to come to an agreement on how they will split their property. The MPA specifically allows couples to make agreements that opt out of the MPA default rules for dividing property, so long as the agreement is in writing and both spouses have independent legal advice before signing. For the times when a couple doesn’t agree, Alberta courts rely on the MPA to determine the division of property.

If you have questions about divorce and your legal entitlements to property, Patriot Law Group can help.

What if you could be the bank?

moneyWe have had a large number of “private lender” transactions come through our office of late. This is what got us thinking about this blog article.

Most of us have borrowed money in the past to buy a car or a home or something else that we did not have enough cash on hand to buy outright.  Banks make money by lending money to others and charging interest on the amount loaned.

What if you could be the bank?  It’s possible and can be profitable to do so.

Here’s what it takes:

  1. Have the money to lend.
  2. Have some tolerance for risk.
  3. Identify a credit worthy borrower.
  4. Document the loan.
  5. Secure the loan.

Having the money

Of course, to lend money you need the available cash in the first place.  However, the amounts at issue are not always that large .  We have seen private mortgage loans just in the last few weeks ranging from $30,000 to $200,000.

Risk tolerance

Private loans (just like any loan) have risk attached.  The risk can be larger or smaller depending on a number of factors including:  the amount of the loan, the credit worthiness of the borrower, the availability of collateral to secure the loan, and the degree to which any collateral is leveraged.  On this last point, for example, a $50,000 secured  loan for the purchase of a property worth $200,000 is relatively lower risk than a loan equal to the value of property being purchased.  Risk is often partly addressed by assigning an appropriate interest rate.   Generally speaking, the higher the risk attached, the higher the interest rate you would expect to see. This makes sense.  If you are going to take more risk, you want a higher reward.

Credit worthy borrower

When banks or other commercial lenders grant loans, they usually go through an evaluation process to assess the credit-worthiness of the borrower.  This is a risk mitigation strategy.  The evaluation process may include doing a credit check, reviewing financial status documents, and doing a variety of other searches.  Private lenders should do the same due diligence and lawyers can assist with some of that.

Documenting the loan

One of the common mantras for lawyers is “get it in writing.”  This is no different for loans.   It is critical that loans be properly documented in writing, This is to ensure that the borrower’s obligations are clear and that the terms of the loan are clear.  In addition, if the borrower is providing collateral to support the loan, appropriate documentation in writing MUST be in place.  Lawyers can add considerable value in preparing loan documentation for you.

Securing the loan

As discussed above, one way to mitigate risk to a lender is to have the loan “secured.” This really just means that some kind of collateral is being pledged as security for the debt obligation.    If no security is pledged in support of a loan, then the lender is “unsecured.”

Being a “secured creditor” is preferable to being an “unsecured creditor.”  An unsecured creditor will generally have a higher priority of claim for the debt owed, at least in respect of the collateral pledged by the borrower.

There are many different types of security that can be provided by a borrower to a lender.  Some common examples (but not an exhaustive list) are the following:

  •  Land Mortgage.  A Mortgage charges a parcel of land (and the buildings on it) as security for a loan.  It also provides a lender with a variety of remedies in the event that the borrower does not make the required payments.  Essentially, the lender can use a court  (foreclosure) process to either sell the land, or have the land transferred to the lender, to recover the debt owed.   A mortgage is registered against title to the land.
  • Assignment of Rents and Leases.  This document relates to land also. It essentially lets the lender step in and act as the landlord, and collect any rent payments payable.  This applies when the borrower will be renting out the property, and typically  operates only when the borrower is not otherwise making the required payments on the loan.   This is usually registered (by way of a caveat) against title to the land.
  • Security Agreement.  This document charges personal (not land) property as security for the debt owed.  It can be very general in nature and charge “all present and after acquired property”, or be specific and charge specific items (such as a vehicle, mobile home, etc.). Specific property is often identified by make, model and serial number.  A security agreement is registered in the Personal Property Registry.

What if things go wrong?

Of course, borrowers do not always pay the amounts owed as planned.  Depending on whether a debt is secured or unsecured, there are different remedies available to a creditor to collect on the debt owed. Your lawyer can prepare provisions in the loan agreement and security documentation to provide effective remedies when things go wrong.

If you are planning on being a lender, or have questions about collection of a debt (secured or unsecured), please contact us. We know business and we can help.

Executors beware: new duties apply to you

Will documentOn June 1, 2015, the Estate Administration Act came into force in Alberta.

This new legislation updates and modernizes the approach taken to the administration of the estates of deceased persons in Alberta.  It is the third significant update to this general area of the law.  In 2012, the Wills and Succession Act modernized the law governing the making of wills and the default rules that apply when you die without a will.  Before that, the Adult Guardianship and Trusteeship Act was brought into force in 2019, creating a new approach to adults who have a diminished capacity to care for themselves or manage their financial affairs.

Among the most important changes in this legislation are the new duties and tasks assigned to the “Personal Representative”.  (A Personal Representative is most commonly the executor appointed by a Will.  It also includes, however, a person appointed by a Court to administer an estate where there is no Will or where a Will does not appoint an executor.)

The 3 duties of the Personal Representative are to perform his or her role:

  1. honestly and in good faith;
  2. in accordance with the intentions of the testator (the maker of a Will) and the Will, if a valid Will exists; and
  3. with the care, diligence and skill that a reasonable and prudent person would exercise in comparable circumstances where a “fiduciary” relationship exists.  (A fiduciary relationship is a relationship of the utmost good faith.)

There are 4 core tasks for the Personal Representative set out in the new legislation:

  1. To identify the estate assets and liabilities;
  2. To administer and manage the estate;
  3. to satisfy the debts and obligations of the estate; and
  4. to distribute and account for the administration of the estate.

Neither the duties nor the key tasks are new; they have been well established for many years. But they now appear up front in the legislation, in order to set clearer and more consistent expectations for the Personal Representative.

The most important new feature of the new legislation is a requirement for the Personal Representative to give written notice to certain persons even when administering an estate without a grant of probate or administration issued by a Court.  A notice is required to be given to 4 types of persons:

  1. To the beneficiaries, specifying (among other things) the gifts left to them.
  2. To any family member of the deceased who may have a potential claim against the estate because the family member has not been adequately provided for under the Will.  (For example, this could involve a family member, such a spouse, who was dependent on the the deceased at the time of death.)
  3. To a spouse, notifying him or her of rights under the Matrimonial Property Act, if the spouse was not the sole beneficiary under the Will.
  4. To persons acting as trustees or guardians for adults, and to the Public Trustee with respect to any minor who is interested in an estate.

These kinds of notices have been required for many years in estates that are being administrated through the authority of a grant of probate or administration.  The new feature is that they are now required even when informally administering an estate.

This new law has the goal of simplifying and clarifying the manner in which estates are to be administered.  However, it is also abundantly clear now that Executors will be held to the same high standard of conduct and performance whether or not the estate is being administered informally (outside of the Courts) or with a formal grant of probate.  Proceeding with legal advice is now more important than ever.