For this end-of-life challenge, I interviewed Ms. Dorota Turlejski, Founder of Uplawed Law, to gain a legal perspective of the issues at hand.
What do you observe with end-of-life conversations with clients?
It is excruciatingly difficult to talk about death. It is coming to terms with, and acknowledging our mortality. Some clients do not always see the value in estate planning. Once I make them feel at ease to have the conversation about death and dying, which can take a while, I can have conversations with clients such as capacity and in some cases, deterioration of capacity to make decisions over time, especially in cases of dementia or Alzheimer's.
How do you make clients ‘feel at ease’?
Acknowledgement, humour, sometimes tact helps. My job is to advocate for my clients, explain how the legal system works, and ensure they and their estate are protected. I acknowledge how they feel. I tell them, ‘You do not want to talk about this, but I know you are going to feel better once this is done.’ Clients who are uneasy about the process relax immediately after they sign off their Powers of Attorney and their Will. I notice that they take a deep breath and exhale a sigh of relief.
What issues are brought up during estate planning conversations?
Three major issues - taxes to the government, providing for families and assessing capacity. As I start talking about taxes and legal obligations upon death, interest perks up. As I have the conversation about money, most people immediately realize that estate planning is partly about owing the government money but more importantly, it is about their legacy and about ensuring that their wishes are carried out if they become incapable or they are no longer alive.
I also help clients understand their rights and inevitably, clients become aware of their family dynamics and influences. For example, a female client in her 80s visited me because her ‘kids are bugging me to get [a Will] done.’ I have to be very careful to ensure that there is no undue influence and that the wishes expressed by my client are his or her own and not someone else’s. Of course, wishes of an individual (rather than the family unit or the community) is an idea that may be specific to our cultural practices. It is hard to make a division between families and the client as an individual, at times. Sometimes parents are estranged from their children, and estate planning brings up these difficult and emotional acceptances. I have conversations about elderly abuse, as well, and the pressure that some of my clients experience. If I suspect elderly abuse, we have a protocol to follow as lawyers and we may have other professionals involved.
Finally, capacity of my clients to make decisions is key, especially if they have been diagnosed with early stage dementia. “Capacity” is a legal definition in our legal world (which is different from the term as it is understood by medical professionals) but often, I need a medical professional to help me assess whether an individual has capacity to decide about their care or about their property. There is a growing number of court cases, or “Will challenges” as we call them, where the crux of the case is whether or not the person executing the document had the necessary capacity. If he or she did not have the capacity, that means the document is not valid - as good as if it did not exist at all. This all means that we, as lawyers, need to take extra precautions and work together with medical professionals to ensure that when people are executing their end-of-life documents, they are capable. Estate litigation is a growing field but more often than not, there are precautions that can be taken to prevent litigation. As lawyers, we rely on collaboration with medical professionals to take every precaution possible to litigation-proof an estate.
Personal legal services are expensive. As such, we have seen a proliferation of e-wills. Can you speak to this issue?
True, cost is prohibitive for some, and there is so much that needs to be done. e-Wills services have their value but they cannot replace proper legal advice. Legal services, such as estate planning, are private. They are not publicly funded. As such, estate and trust planning lawyers miss a huge catchment of the population - new immigrants, poorer income families and recent college/university graduates. In an ideal world, estate legal services would be subsidized by the government, much like legal aid is for other areas of law.
The biggest issue I deal with is financial literacy. A lot of my work is education and not necessarily legal work. I wish financial education was widely available and in my mind, should be widely available (as widely as awareness of the necessity to file taxes annually or that there is property tax payable by every home owner, for example) because it has implications for a person’s financial stability and, not surprisingly, it has an impact on one’s health, physical and mental. Financial literacy is both a health and legal issue, in my mind, and law is a field ripe for transformation, akin to healthcare’s current transformation. I deliver free workshops in my community about estate planning and with a colleague, I have plans to deliver a cost-friendly workshop for estate executors (those appointed to carry out the deceased’s wishes). There is space for joint ventures between law firms, private investors and government funding to pool resources and deliver education to the public. It is a very exciting time in Canada to build such joint ventures because the political agenda supports entrepreneurs and cross-disciplinary collaboration. I see potential for the legal start up space, much like the biotech or fintech arenas. If we can determine a better way to deliver our legal services in a cost-effective manner, we will access under-served populations.
About Dorota Turlejski: Dorota is the Founder of Uplawed Law, a boutique law firm that provides real estate, and estate planning legal services. She completed her legal training at the University of Ottawa, Canada, where she was awarded the Public Interest Fellowship. Before law, Dorota was a researcher and educator in psychology. Dorota volunteers with REACH Canada, an organization offering legal aid to individuals with disabilities. In her spare time, she and her husband entertain their nieces and nephews, and their dog, Pharah.