Fitzpatrick Law
erin@fitzpatricklaw.ca

Services

Areas of Practice

ADVANCED PLANNING

WILLS & ESTATES

Erin offers a range of legal services in wills and estates. Erin guides clients who have straightforward or complex needs with selecting an appropriate course of action to ensure advanced care planning needs are appropriately addressed. Erin services include creating basic wills including wills that require a Henson Trust. Erin’s services also include assisting clients who are in the process of settling the estate of a family member or loved one should there be a will or should no will exist.

Some legal information is provided below to assist you in familiarizing yourself with this area if it is new to you. This is legal information only of a general nature which is current at time of writing. It is not a substitute for legal advice which is what would be provided once you decide we would work together.

WHAT IS A WILL

A will is legal document expressing your wishes and directions for the distribution of your assets (i.e. property money/cash, house, car, personal effects) upon your death. It is a written document made today intended to take effect when you die. It can be changed at any time by making a new will. It is necessary for the person creating the will, the “testator” to be of “sound mind” when the will is made.

WHY SHOULD I HAVE A WILL?

  • Your wishes are made known

  • Your wishes are made legally binding

  • Detailed instructions are given which express your wishes for your assets to be left to the people of your choice and how and when the assets are to be received

  • You choose who will be looking after your estate upon your death. This person is called an “Estate Trustee.”

  • To avoid what may happen if you die without a will with the unintended consequences of your assets going to person you do not wish to benefit

WHAT IF I DIE WITHOUT A WILL

  • The legal term for dying without a will is “intestate”

  • Without a will, no one has the legal authority to access or to deal with your property or financial affairs until someone is appointed by the Court.

  • The Court will appoint a person (usually a relative or friend) to take care of your estate and settle your affairs. This court process may cause delays which may cause additional costs and other problems for your family/loved ones

  • By not having a will, you give up the right to choose who will inherit your property, the amount each person receives, along with when and how they receive it (i.e. immediately or in the future) 

  • If you die without a will, Ontario law (not you) determines who gets your estate and how much. For example, generally, your assets are divided between your legal spouse and children in certain shares. If you do not have a spouse or children, then your assets are divided between your closest relatives

HOW TO CREATE A WILL

It is best to get legal help to make a will. This allows you to explore your options and how best to achieve your wishes.

  • Wills must adhere to very specific rules that the law calls “formal requirement”.

  • A will must be in writing and signed by the “testator” at the end of the document

  • Failure to meet the formal requirement regarding signing and witnessing will result in your will being ineffective

TYPES OF WILLS: FORMAL WILLS AND HOLOGRAPH WILLS

Holograph Wills:

  • A holograph will must be written entirely in the handwriting of the “testator” (person creating the will).

  • Since the “testator” writes the will him/herself, often these types of wills do not involve lawyers. So, these wills may and often can be created at no cost which has this obvious benefit.

  • A holograph will does not require witnesses. If any part of a holograph will is not in the testator’s handwriting, the will may be considered invalid.

  • Holograph wills may be just as “legal” as formal wills if they are undertaken correctly but frequently once the “testator” dies, it becomes apparent that there are many inadvertent problems . Often when a holograph will is created without legal advice or legal knowledge, unintended errors occur which may result in difficulties including conflicts among the testator’s (deceased person who created the will ) family and friends. It is ideal to execute a formal will with a lawyer.

    Formal Wills:

  • A formal will may be created without the use of a lawyer though that entails risks and formal wills are often created with the assistance of a lawyer from the instructions of the “testator” (person creating the will). Lawyers in private practice will usually advise that it is better in the long run to have a lawyer ensure all your instructions are carried out properly in the creation of your will so the result is a valid and properly executed will.

  • There are many formal requirements with a formal will. Some of the formal requirements include that the will be signed by the testator in front of two witnesses at the same the time.

  • These two witnesses also sign the document as witnesses. While any adult can be a witness, beneficiaries should not be witnesses.

  • Will Kits (Paper) /Online Wills Tools: CAUTION: Not all “will kits” sold in Ontario and not all online wills tools follow the requirements of Ontario law. So, if you use one of these to create your will, the will you create may not be legally binding or valid. The best way to be assured your will is valid is to get legal advice.

    Click here: This short video which emphasizes the importance of having a will (link to LawPro).

POWERS OF ATTORNEY

Erin offers a range of legal services in the area of powers of attorney, guardianships, trusteeships and basic wills. Erin guides clients who have straightforward or complex needs with selecting an appropriate course of action to ensure advanced care planning needs are appropriately addressed. Powers of attorney for property and powers of attorney for personal care are offered. Guardianship applications are explored when required.

Some legal information is provided below to assist you in becoming familiar with this area. This is legal information only of a general nature which is current at time of writing. It is not a substitute for legal advice.

LEGAL INFORMATION ABOUT POWERS OF ATTORNEY

A power of attorney is a legal document that provides another person, the “attorney”, with the authority to act on your behalf. In Ontario, there are two types of Powers of Attorneys: 1) Power of Attorney for Personal Care 2) Power of Attorney for Property.

Power of Attorney for Personal Care

A power of attorney for personal care is a legal document that provides authority to another person ,the “attorney”, to make decisions relating to personal care on your behalf if you become mentally incapable of making those decisions yourself.

  • The attorney can not make personal care decisions when you are mentally capable. The attorney for personal care can only make decision on your behalf once you have been found to be mentally incapable of making that particular decision.

  • The attorney is not a lawyer. Rather, an attorney is a person that you select and trust to make decisions for you when you are not able to make decisions for yourself. 

  • A power of attorney for personal care allows you to indicate both what you want to happen regarding your personal care and what you do not want with respect to your personal care decisions.

  • Personal care decisions are defined as decisions regarding: your health care & medical treatment, your diet, your housing, your clothing, your hygiene and your safety. If your attorney is acting on your behalf, decisions that need to be taken on your behalf may involve involve communicating and decision-making with health care practitioners, long-term care facilities staff and loved ones.

  • The indications you make regarding what youbefore you become incapable are known as “wishes”. For example, if there are certain specific medical procedures you would not wish to receive, such as ECT, you would specifically state that in your power of attorney for personal care. 

Power of Attorney for Property

A power of attorney for property is a legal document that provides the opportunity to select another person, the “attorney” to make financial and other property- related decisions on your behalf.

  • Financial and property decisions include but are not limited to dealing with: bank accounts, investments, bill payments, tax returns, real estate and other financial products and services.

  • An attorney is not a lawyer. Rather, an attorney is a person that you select and trust to make decisions and manage your financial affairs property on your behalf.

There are different ways that a power of attorney may be created. It is possible that an attorney may have authority to: 

(1) act for you both when you are capable and when you are mentally incapable; OR

(2) act only when you have been found mentally incapable of managing your property/finances in accordance with the law. 

In the second situation, in order to ensure that this form of power of attorney will be recognized and considered valid, it must either be called a “continuing power of attorney for property” or it must specifically state in the document that your attorney has been given the right to continue acting for you if you become mentally incapable.

More Information

It is encouraged, but certainly not required to do any reading before being in touch. Additional resources are linked below

Guardianship Applications

When a person no longer has capacity and decisions need to be made on behalf of the person, a guardianship application is often considered. Erin will discuss if this is an appropriate option for your loved one’s situation.

TRAINING SERVICES

Erin offers presentations and training in various areas of social justice law including in the areas of mental health law and wills & estates. Erin would welcome the opportunity to come to your organization or arrange virtual delivery to provide training to your staff or clients. Erin is a frequent presenter to front-line professionals (lawyers, settlement counsellors, social service professionals) on the topic of working from a “trauma-informed approach”. The following is a sample of training sessions and presentations Erin has provided to various organizations.

SELECTED SPEAKING ENGAGEMENTS & GUEST LECTURES

  • Lancaster House, Ottawa Labour Law Conference, “Trauma Informed Approach to Practice” ( October 2021)

  • Catholic Centre for Immigrants, Annual Training Day “Trauma Informed Approach” (March 2019)

  • Eastern Region Legal Aid Ontario Clinics - Housing and IM Group Annual Meeting, “Powers of Attorney, Guardianships, Wills” (November 2018)

  • OCCS- Syrian Newcomer Program, “The Essentials of Wills in Ontario” (August 2018)

  • Canadian Bar Association/ Global Affairs Canada, “Trauma Informed Lawyering” (July & August 2018)

  • Connecting Ottawa , Annual Conference, “Ethics and Conflicts of Interest in Housing Law” (May 2018)

  • OCCS, Syrian Newcomer Program “Youth Criminal Justice Act” Joint Session for Parents and Youth (December 2017)

  • Eastern Region Legal Aid Ontario Clinics, Housing and IM Group Annual Meeting , “Trauma Informed Lawyering Workshop” (November 2017)

  • University of Ottawa, Ticket Defence Program: Street Legal Conference, “Holistic Approach to Working with Street Involved Clients” (March 2017)

  • Ottawa Community Immigrant Services Organization, “Ethical Issues in Practice & Conflicts of Interest” (December 2017)

  • Connecting Ottawa, “How to Support People with Mental Health Issues-What are Their Rights?” ( September 2016)

  • University of Ottawa- Faculty of Law: Mind, Brain, Law Discussion Group- Group Co-Facilitator of group for law students with interest in neuroethics. ( Bi-weekly Fall, 2016)

  • University of Ottawa - Faculty of Law (Common Law, French) Social Justice, “Holistic Approach to Practice” (November 2015)

  • University of Ottawa- Faculty of Law: Access to Justice (TDP), “Mental Health Law & Clinical Skills” Workshops (2015, 2016, 2017, 2018)

  • University of Ottawa- Faculty of Law: “Law & Psychiatry- Different Disciplinary Practices in Mental Health” (February 2015);

  • University of Ottawa- Faculty of Law: (CL, English)- Social Justice “Holistic Approach to Practice”-Workshops (March 2016, Nov. 2017)

  • University of Ottawa, Faculty of Social Work- “Mental Health Law and Practice” (March 2016)

  • Catholic Centre for Immigrants -Annual Training Day –“Effective Communication with Challenging Clients” (December 2015)

  • University of Ottawa- Faculty of Law: Tort Law “Consent & Capacity Law- Starson Case” (March 2013)

  • McGill University - Faculty of Medicine “Law & Psychiatry” (October 1999, October 2000, October 2005)

MENTAL HEALTH LEGAL & COUNSELLING SERVICES

Erin offers a range of legal and counselling services to those diagnosed with or experiencing mental health issues and to those who support them absent any conflict. Erin’s approach to mental health issues is guided by her social work and legal experience. Working from a holistic, trauma- informed and client-centered approach, Erin offers legal advice and representation to those who are seeking to understand and to exercise their legal rights.

LEGAL REPRESENTATION SERVICES

  • Findings of Incapacity

  • Involuntary Admissions to Psychiatric Hospital

    -Proposed Treatment

    -Property

    -Long-Term Care/Personal Assistive Services

    -Personal Health Information​

  • Community Treatment Orders (“CTOs”)/Community Treatment Plans including renewals of C​TOs

  • Appointment of Representatives i.e. Form G Applications

  • ​Decision-Making and Statutory Compliance

SOCIAL WORK SERVICES

  • short-term counselling

  • bridge counselling

  • consultation services

  • case management plans with a focus on community resources

    From Erin’s previous work as a community lawyer & social worker and role with the Ticket Defence Program, she has an in-depth knowledge of community (no- cost) resources and private (for-cost) resources along with numerous counselling contacts in Ottawa.

Mental Health Community Resources - Click on Blue hypertext link to connect with Resource

Mental Health Legal Resources -Click on Blue hypertext link to connect with Resource

  • Psychiatric Patient Advocate Office: If you have been hospitalized and you wish to speak with a Rights Advisor about your rights since you disagree with decisions being made about your treatment or status you may contact the Psychiatric Patient Advocate Office by clicking through the hypertext link to the website or phone at 1-800-578-2343. Please ensure the hospital staff provides access for this telephone call. The Rights Adviser will explain your rights and help to connect you with Erin (if you request Erin) or another LAO Certificate lawyer if your situation is eligible.

  • Legal Aid Ontario - Certificate Program Lawyers. Erin had been empanelled by Legal Aid Ontario to provide services and accept Legal Aid Certificates for Consent and Capacity Board Hearings. Tel: 1-800-668-8258

  • Find a local Legal Aid Office - Clinic Lawyers do not offer representation brin the area of mental health law. Clinics may or may not provide help with mental health legal problems via summary advice and referrals to Clinic and LAO Certificate Lawyers (like Erin). It is necessary to contact your local clinic and inquire.

  • Lawyer Referral Service : Law Society of Ontario
    Tel: 1-800-268-8326 online: lsrs.lso.ca

  • Consent and Capacity Board

    Tel: 1-866-777-7273 online: www.ccboard.ca

NOTARY PUBLIC & COMMISSIONING SERVICES

  • Notarial copies of original documents

  • Administration of Oaths for Affidavits and for Statutory Declarations

  • Letters of Invitation 

  • Witnessing of legal agreements

  • Legal documents requiring no independent legal advice