The Seniors Law Reform Committee has made a series of recommendations to the Ministry of Health, Seniors and Environment for amendments to legislation which would better protect seniors from financial abuse. This growing problem is particularly unsettling in the family context, where powers of attorney, joint bank accounts and voluntary conveyances of real estate are used by younger generations to gain control over the assets of their elders. It often remains hidden, because its victims are both ashamed and afraid that, if they resist, they will be placed in residential care and risk abandonment and emotional abuse by the perpetrating family member.
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For a diversity of reasons, many of us are unwilling to properly contemplate our own beliefs and preferences concerning the subject of end-of-life care. Some of us are young enough that we have no sense of our own mortality – we are invincible and have the advantage of a seemingly infinite time horizon to get serious about the serious stuff. Others of us are older and although we want to be responsible adults and save our families from the stress of making life and death decisions on our behalf, we also worry that we may be tempting fate by making plans. The same holds true for those of us suffering from chronic and/or terminal illness. At the end of life, whenever and however that may unfold, the best that we can hope to achieve is death with comfort and dignity, in whatever manner each of us conceives of that. There is quite possibly no more important issue about which to exercise self-determination. For this reason, for the purposes of enshrining our end of life preferences, so there may be no doubt of our wishes, everyone should have an “Advance Directive for Healthcare” or “Living Will”.
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None of us likes to consider the possibility that we may one day find ourselves unable to manage our own affairs. It is a boon that we can expect to live longer, but longer life often involves a loss of independence, and the possibility of that loss of independence necessitates forward planning. It is essential to ensure that someone can take up your day to day responsibilities in the event that you lose physical or mental capacity and one of the simplest and most cost-effective tools available for these purposes is the Enduring Power of Attorney (“EPOA”).
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The Bermuda statistics on aging in Bermuda should be a wake-up call to all of us that our senior citizens require greater legal protection than our laws currently offer. By 2020 there will be 30 seniors (aged 65 and over) for every 100 persons of working age (aged 15 to 64). By the same year, there will be 75 men for every 100 women. Many senior Bermudians have relied on rental income from real estate to supplement their pension income. As we know, the Contributory Pension Fund is vastly underfunded, the rental property market is soft and seniors are being “encouraged” out of the job market. At the same time, many seniors are also providing for their children and grandchildren, who themselves are feeling the financial pinch. The combination of parental generosity, coupled with an aging parent’s increasing vulnerability, can have devastating consequences. Read More »
…it would seem that, unnoticed by the equity judges and academics over the centuries, actions subsequently regretted by trustees have a quality of reversibility. It appears that Doctor Equity can administer a magical morning after pill to trustees suffering from post-transaction remorse, but not to anyone else.
The Trustee Amendment Act 2014 (the “Act”) (35 KB PDF) will have the effect of amending the Trustee Act 1975 to introduce a new section 47(A), giving the court jurisdiction to set aside the exercise of a fiduciary power, which has gone wrong, thereby enshrining in law the “Rule in Hastings-Bass”, referred to by Lord Neuberger in commentary as a “magical morning-after pill”.
In the case of Hastings-Bass, Lord Justice Brown laid down the following, which became known as the “Rule in Hastings-Bass”: Read More »