Frequently Asked Questions

I want to sue that rat who did ___ (fill in the blank), but after getting a quote on legal fees from my lawyer I had to go to the emergency department instead. WHY are lawyers so danged expensive?

What is a legal Will Kit?

I am contemplating separation from my spouse/partner. What should I do first?

What is a Power of Attorney?

Isn't a Will the same thing as a Power of Attorney?

I am buying/starting my own business? Should I incorporate?

Why do I need a last Will and Testament?

What is a retainer?

How much will it cost?

I want to sue that rat who did ___ (fill in the blank), but after getting a quote on legal fees from my lawyer I had to go to the emergency department instead. WHY are lawyers so danged expensive?
Well, we are not expensive for everything. Cut us a bit of slack. We spend 7 years in university and then another year as an indentured servant -otherwise known as 'articling student'-and that represents a great deal of time, hard work and lots of expensive tuition.

Beyond the initial investment of time and money to become 'lawyers', the only thing we lawyers have to sell is, well, our time. I am not selling appliances that you can touch and use. I sell my time and in turn I hope I am giving you real value for your money.

On the other hand, if time is all I have to sell and the work you have is complicated or detailed, then my time spent on you will be higher than average.

As an example of when lawyers are usually criticized for being expensive, a litigation file represents a great deal of time, even for so-called simple lawsuits.

I have often thought that if rural or small town lawyers have to be a jack-of-all-trades (or ‘jill’ in my case) then lawyers who choose to practice civil litigation have to learn to become a quasi-expert in whatever area their client’s law suit rests.

For example, if you want to sue a contractor for bad workmanship or negligence, then I not only have to understand the Rules of Court, the rules of Evidence and the law of negligence and contracts, but I have to spend time learning about the job of the contractor and what he did versus what he should have done. I need access to the right experts and the correct information.

If you want to sue a doctor or hospital for medical malpractice, then I have to learn a great deal about medicine, medical terms, and we need to obtain a medical opinion that agrees with your claim. In New Brunswick that means we have to apply out of province or even to the U.S. for an opinion. That, in itself, is costly.

From your lawyer's point of view, this is all very fascinating, but can also be a great deal of time-consuming work. It is difficult for the non-lawyer to sometimes understand why litigation is so expensive. The above is certainly one reason.

Ultimately, the process itself is complicated. That is out of your lawyer's control. Even the actions/inactions of the Defendant are out of your lawyer's control, in many ways, but that is a story for another day. This is starting to remind me of my legal Will-Kit argument, but truthfully, the only simple lawsuits are the ones that stay in Small Claims court or the ones that are settled before any action is taken.

That is why lawyers are, sometimes, so danged expensive!

>>Back to Top<<

What is a legal Will Kit?
In short, a lawyer's worst nightmare. Okay, maybe I exaggerate.

I have conducted a few estate planning seminars for different groups over the past five years and one of the most common questions that arises at these seminars is, “If my estate is really simple, can’t I just order one of those legal Will Kit thingys?”

I know why people ask this, they want to save money. Who can blame them? If I have a choice between paying $200.00 for a product or $50.00 for a product that appears to be the same I will always opt (unless it is for charity) to pay the lower price. We do not want to give our money away if we do not have to, right?

Maybe not, but please first consider that a legal Will Kit versus a Will drafted by a competent professional is not the same thing. Do you know about the Rule against Perpetuties? How about the Rule in Saunders v. Vautier? Surely you are familiar with the Devolution of Estates, the Provision for Dependants Act and Shelley’s Rule? If you answer no to any of those questions, I would suggest you might want to forego the legal Will Kit, even for what you think is a simple estate.

In my experience, the only simple estate is the one where you own absolutely nothing and have no dependants to worry about. Lawyers go to law school, they article and then spend the rest of their lives learning the rules, reviewing the legislation and the written decisions of Judges. There are probably 7 or 8 Acts that deal with estate matters and the fun part about the law is that it is always changing. I say fun because I like to learn new things.

Yeah, I was one of those kids in school who actually liked school, so sue me!

>>Back to Top<<

I am contemplating separation from my spouse/partner. What should I do first?
If buying or selling a home or business is stressful, the break-down of a relationship or a marriage is probably one of the most difficult things an adult can face.

There are a number of things that you have to consider, most of which are daunting and emotionally charged. While neither I nor anyone else can repair your broken relationship, I can give guidance and advice and point you in the right direction.

One of my most important obligations as a lawyer is to ensure that you have thought this matter through and to direct your mind to the possibility of reconciliation and to counselling. Have you truly exhausted all of your options? Have you spoken to a counsellor either alone or together? If your answer is yes, then maybe it is time to give me a call to discuss this in person.

The focus of my practice is not family court and litigation. Sometimes there is no other choice but to go to court. In my opinion it should always be the last resort and fighting in court is rarely the best option. Negotiation and mediation should be your first stop, either through a mediator or your legal counsel.

>>Back to Top<<

What is a Power of Attorney?
A "Power of Attorney" can be drafted for any number of reasons. You may be going out of the country or Province for the next few months or so and your home is listed for sale. You may want a limited Power of Attorney granting someone you trust the authority to sign deeds/transfers, etc. on your behalf in case someone makes an offer while you are gone.

In my practice I commonly draft what is known as an "Enduring Power of Attorney and Power of Attorney for Personal Care". This is a more comprehensive document that gives whomever you grant the authority to the ability to step into your shoes, so to speak. If you are no longer physically or mentally capable of handling your own affairs due to accident or disability then your attorney essentially can make those decisions for you.

It is always revocable so long as you are mentally competent and it only becomes effective/active when you place the original signed document or a notarized copy into the hands of your attorney.

Clients sometimes leave the original at my office and give me instructions to only release it to the attorney if one of two things occur: either the client signs a letter of authorization or, I am in receipt of a letter from one or two medical professionals indicating that the client is no longer mentally competent.

There is also a document called a "Health Directive" or "Living Will" that can be a complement to a Power of Attorney. Only if someone expresses to me that they have very specific ideas about how they want failing health or hospitalization handled do I usually go this route. The regular "Enduring Power of Attorney and Power of Attorney for Personal Care" handles this nicely for general authority granting your attorney the right to refuse or consent to medical treatment on your behalf.

It is important to know that, as of March, 2009, the law surrounding Powers of Attorney for Personal Care and Living Wills is not clear. These documents do not have the same force and effect as your Power of Attorney for financial matters. Ultimately your doctor or health care professional has the final say if you are unable to speak for yourself, not your Living Will. They have their own code of eithics to follow.

The downside to not having a Power of Attorney of any kind is that if you ever become mentally incompetent, whether it be due to accident or age related dementia, disease the only way one of your children can handle things on your behalf is if they make an expensive court application. If you already have a Power of Attorney you may have saved your family the expense and stress of a court application.

>>Back to Top<<

Isn't a Will the same thing as a Power of Attorney?
I have been asked this before. No. A Will is only effective after you die. Until then you can change it as many times as you like or dispose of every bit of property that is in the Will and it has no effect on anything. If there is nothing left of your estate when you pass, the gifts in the Will 'fail'.

A Power of Attorney is only effective while you are living and when you give your attorney access to the original document or a notarized copy. Once you die the Power of Attorney and all of the authority granted thereunder is at an end.

>>Back to Top<<

I am buying/starting my own business? Should I incorporate?
There is not often a simple answer to this question. In order to answer it more fully you need to consult with your accountant and your lawyer to determine whether or not it would be beneficial for the type of business you are buying or creating.

There are benefits to incorporation, such as limited liability personally (but this is not always true) and if you anticipate a great deal of revenue from your business you may be able to reduce your taxes through dividends.

I advise speaking to your accountant and to give me a call to set up an appointment.

>>Back to Top<<

Why do I need a last Will and Testament?
I will list a few of the most important reasons:

- Because it gives you a say over how your affairs are handled after you have died. Who will handle your estate; where your assets will go; when your assets will be distributed, etc.

- It will give you peace of mind to know that you can still help your loved ones after you have died.

- A well written, understandable Will can ease any additional stress your loved ones may feel on your passing:

o A Will can limit family disputes about your possessions
o A Will can ensure that those you do not want to inherit upon your death will not inherit.
o A Will can help limit any pillaging of your belongings upon your death.

- If you die without a Will (in legal terms it’s called dying intestate), you will have no say in how your possessions are distributed, as the law provides guidelines on who will inherit when there is no Will

>>Back to Top<<

What is a retainer?
The word 'retainer' sometimes has different meaning to different people. From my point of view, it is a sum of money that you may be asked to bring in to 'retain' my services as your legal counsel. Retainers are deposited into a lawyer's trust account and remain there until the money is needed to pay your legal account and disbursements.

Sometimes you may be asked for a replenishing retainer. This means that when the original retainer has been used your lawyer will expect you to bring in more money so that there is always money in trust to pay for fees and expenses associated with your legal issue.

Lawyers almost always request retainers for litigation, either civil or family. They will sometimes request them for other matters as well. It is up to the individual lawyer whether or not they will require a retainer and how much they will require. The amount is often determined by the type of issue they are handling on your behalf and its complexity.

>>Back to Top<<

How much will it cost?
It is important to discuss fees and expenses with your lawyer. If they do not tell you up front (and I can not imagine that this happens too often!), you should ask how they will be billing you, by the hour, by the matter, or a combination of the two. What is the lawyer's billable rate? In other words, what do they charge per hour if that is how they will be billing you. How long do they anticipate the matter will take? How much of a retainer do they require?

In all honesty, it is sometimes difficult to tell how long something may take, and this is especially true if your issue involves litigation/court. There are so many variables and unknowns in a file and often things pop up that neither the lawyer nor the client anticipates. So do not be too surprised if your lawyer shrugs their shoulders in uncertainty, hesitates, or gives you a low end quote and a high end quote with a wide differential.

On the other hand, if it is a straight-forward Will, Power of Attorney or a normal property transaction, your lawyer should be able to give you a very close estimate after a quick review of your situation/needs.

Lawyers with a great deal of experience or expertise in their field may charge considerably more than a lawyer who is only sporadically involved in an area of the law. You are paying for this experience, and in theory it should take the experienced lawyer less time to do the same thing as a more junior or inexperienced lawyer. It should all balance out at the end of the day.

The client should be comfortable with his or her lawyer's knowledge and ability and the lawyer, too, should feel like they are able to handle the matter in a competent, professional manner. Truly, whether a lawyer has been practising for two years or twenty years should be irrelevant. I know when I am in over my head or in an area of the law where I think the client may need advice from other counsel; in those situations I will be the first one to point it out to my client.

>>Back to Top<<