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Taking an Interest in Aboriginal Lands

BACKGROUND

1. Definitions

Reserve:

The Indian Act, 1876 (“Indian Act”) defines a reserve as “any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, mineral, metals, or other valuables thereon or therein.”1

2. Reserves are Unique

According to the Department of Indigenous and Northern Affairs Canada, reserves differ from other land in that:2

1. The Crown holds legal title to reserve lands;
2. Aboriginals have a recognized interest in reserve lands. They have the right to exclusive use and occupation;
3. Reserve lands cannot be mortgaged or pledged to non-Aboriginals; and
4. Most land transactions must be approved by the Minister as per the Indian Act.

INTERESTS IN RESERVE LANDS

3. Individual Interests in Reserve Lands

Although the Crown holds legal title to reserve lands, the Indian Act allows individual members of an Aboriginal band to be given an allotment, which is the right to use and occupy an area of reserve land.1 Approval must first be obtained from the Band Council and the Minister of Aboriginal Affairs and Northern Development (the “Minister”), after which an individual will be considered to have lawful possession of the parcel of land.2

Non-Aboriginal individuals are not allowed to hold lawful possession of reserve lands, although they may enter into leases or acquire permits or licenses to obtain rights to use or occupy reserve land. The Band Council and the Minister must approve the leases, permits and licenses.2

4. Obtaining a Lien or Charge on Real Property Located on Reserve Land

According to section 66 of the Indian Act, “no person shall take any security or otherwise obtain any lien or charge, whether by mortgage, judgement or otherwise, upon real or personal property of any Indian or non-treaty Indian within Canada, except on real or personal property subject to taxation.” Real or personal property is subject to taxation if the property is located outside the reserve.1

Section 66 also stipulates however, that “any person selling any article to an Indian or non-treaty Indian may, notwithstanding this section, take security on such article for any part of the price thereof which may be unpaid.”1

References
1. Parliament of Canada. Chap. 18 – An Act to amend and consolidate the laws respecting Indians [Internet]. 1876 [cited 2016 Aug 22]. Available from: http://www.aadnc-aandc.gc.ca/eng/1100100010252/1100100010254
2. Government of Canada, Department of Indigenous and Northern Affairs Canada. Land management [Internet]. 2013 [cited 2016 Aug 22]. Available from: https://www.aadnc-aandc.gc.ca/eng/1100100034737/1100100034738

Medically Assisted Death in Canada

1. Introduction

On June 17, 2016, Bill C-14, the legislation on medical assistance in dying, received royal assent.1

2. Criteria for Medical Assistance in Dying (MAID)

In Canada, only physicians and nurse practitioners can legally provide MAID. There are two ways of providing this service:2,3

1) the physician or nurse practitioner directly administers a substance causing death

2) the physician or nurse practitioner gives or prescribes a self-administered drug that causes death

The following conditions must be met in order to be eligible for MAID.2,3 You must:

1) be eligible for government-funded health services

2) be at least 18 years of age and capable of making health-related decisions

3) have a grievous and irremediable medical condition

4) make a voluntary request for MAID which is free from external pressure or influence

5) provide informed consent to receive MAID. This involves obtaining information about your medical diagnosis, the types of treatment available and options to relieve suffering which includes palliative care

The definition of a grievous and irremediable medical condition as stated in Bill C-14 is as follows.3 You must:

1) have a serious and incurable illness, disease or disability

2) be in an advanced state of irreversible decline in capability

3) endure physical or psychological suffering as a result of your illness, disease, disability or state of decline that is intolerable and cannot be relieved under conditions you consider acceptable

4) be at a point where your natural death, taking into account all your medical circumstances, has become reasonably foreseeable. A prognosis does not necessarily have to be made with regards to the specific length of time you have remaining

Note that people with a mental illness are eligible for MAID as long as all of the conditions are met. However, you are not eligible for this service if any of the following applies:2

1) You suffer only from a mental illness

2) Death is not reasonably foreseeable, considering all of your medical circumstances

3) Your mental illness decreases your ability to make decisions regarding your health

At present, the federal government does not allow mature minors or those suffering only from mental illnesses to access MAID. Advance requests are also not accepted. However, the government will be studying these issues in more depth. Independent studies will be initiated within 180 days of the legislation being passed.1

3. Process for Requesting MAID

In order to request MAID, you must complete the following steps:2,3

1) Discuss end-of-life care options in relation to your medical condition and circumstances with your physician or nurse practitioner

2) Your physician or nurse practitioner must conclude that your medical condition is grievous and irremediable and they must ensure that you are eligible to receive MAID based on the criteria above

3) You must sign and date a written request for MAID

4) Your request must be signed and dated by 2 independent witnesses. An independent witness must be at least 18 years of age and understand the nature of the request for MAID. To be considered independent, the witnesses cannot:

• Benefit from your death
• Own or operate a health care facility where you live or are being treated
• Be directly involved in providing you with health care services or personal care

5) A second physician or nurse practitioner must provide a written second opinion that confirms your eligibility for MAID. He or she must be independent from the person providing the original assessment. Being independent means that neither of them:

• Mentors or supervises the other’s work
• Is knowingly benefitting from your death
• Is knowingly connected to the other or to you in a way which would affect their objectivity

6) There must be a minimum 10 day wait period between signing your request and when the service is provided. There may be an exception if:

• Your death is imminent
• Your capacity to provide informed consent will soon be lost

Note that you may rescind your request for MAID at any time and in any manner.

4. Guidelines for Physicians

When determining whether the patient has the capacity to consent to treatment, the physician must ensure that the patient can understand and appreciate the information relevant to making the decision and the reasonably foreseeable consequences of that decision. The patient must be able to understand and appreciate the history and prognosis of their medical condition, their treatment options and the risks and benefits of each one. When requesting MAID specifically, the patient must be able to understand and appreciate that the result of self-administering or having the physician administer the fatal dose of medication is death.4

In determining whether the patient has a grievous and irremediable medical condition, physicians are to use their professional judgement. Physicians may also opt to seek independent legal advice.4

To ensure that the patient is providing informed consent, physicians must review all treatment options with them. The federal legislation specifically requires that the patient be informed of the ways in which their suffering can be relieved, including palliative care. Consent to MAID must be given by an individual who is capable of making decisions and not by a substitute decision maker.4

Physicians who have a conscientious objection to providing MAID and who decline to do so are expected to provide the patient with an effective referral, meaning a referral to a “non-objecting, available and accessible physician, nurse practitioner or agency.” To allow the patient access to MAID, the referral must be made in a timely manner.4

If the first or the second physician decides that the patient does not meet the criteria, the patient is entitled to seek out another physician to request for MAID. That physician will assess them using the same criteria.4

For patients who have met all of the criteria, the physician must ensure that the patients are capable both at the time of the request for MAID and at the time they receive MAID. Just before providing MAID, the physician must give them the opportunity to withdraw their request.4

5. Legislation Facing Legal Challenges

On June 27, 2016, a 25 year old B.C. woman with spinal muscular atrophy and the British Columbia Civil Liberties Association launched a constitutional challenge against the federal government’s assisted-dying legislation. They argue that the legislation is unconstitutional because it deliberately excludes those who are suffering, but whose deaths are not reasonably foreseeable.5

Justice Minister Jody Wilson-Raybould has stated that the government “is aware of this potential challenge and will respond in the courts as appropriate.”5

References

1. Government of Canada, Department of Justice. Medical assistance in dying: Questions and answers [Internet]. 2016 [cited 2016 Jul 8]. Available from: http://www.justice.gc.ca/eng/cj-jp/ad-am/faq.html
2. Government of Canada. Medical assistance in dying [Internet]. 2016 [cited 2016 Jul 8]. Available from: http://healthycanadians.gc.ca/health-system-systeme-sante/services/palliative-pallatifs/medical-assistance-dying-aide-medicale-mourir-eng.php
3. Parliament of Canada. Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) [Internet].2016 [cited 2016 Jul 8]. Available from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=8384014
4. The College of Physicians and Surgeons of Ontario. Medical assistance in dying [Internet]. 2016 [cited 2016 Jul 8]. Available from: http://www.cpso.on.ca/Policies-Publications/Policy/Interim-Guidance-on-Physician-Assisted-Death
5. Laanela M. Assisted-dying legislation faces new legal challenge in B.C. CBC News [Internet]. 2016 Jun 27 [cited 2016 Jul 8]. Available from: http://www.cbc.ca

Will Contesting

Here’s an interesting and general article about Will Contesting. Read below.

Will contests are typically brought on by family members from wealthy families who believe they were cheated out of their share of the inheritance of the assets involved. A legal battle may also erupt though when a family member believes the will was fraudulent or done under bad circumstances. For example, they may have had Alzheimer’s and were not in sound mind at the time the will was created.

To be specific, a will contest is a legal proceeding that challenges the validity of a will or its wording. To contest a will you need to make a case for one of the following in probate court; was the will maker mentally competent at the time they drafted or signed the will? Was the will maker pressured by someone to agree to the terms of the will? Does the will maker have another will or trust that would trump this one? Was the will properly witnessed or signed? Was the will maker tricked or fraudulently exploited? Did an outside party change the will? If you can answer yes to any of these questions then you have a legitimate reason to contest a will in probate court.

Probate court is a sanctioned legal process that tries to distribute the estate of those who’ve died. The probate process has several goals you should expect. One goal is to verify the validity of the deceased person’s will. The second goal is to identity and create an inventory of the deceased person’s estate. The third goal of probate court is to appraise the estate. The fourth goal is to get the deceased’s remaining debts and taxes paid. The final goal is to distribute the deceased’s property to the rightful owners. If the will is successfully contested and becomes void, or if there is no will at all, the deceased person’s kin would get the estate distributed to them. In some state’s kin include a surviving spouse.

The best way to avoid will contests is with careful planning and good drafting by the will maker. A good will maker will try to avoid using divisive measures such as disinheriting family members, or anything else that will cause conflicts or invite challenges. A good will maker will also never put assets they already pass using other means, such as trust funds, in the will. Another way to prevent will contests is by having a ‘no contest clause’. This clause gives a gift, such as a certain amount of money, to some one and by accepting that gift they agree not to contest the will.

Disclaimer: This article has been written for information and interest purposes only. The information contained within this article is the opinion of the author only, and should not be construed as legal advice or used to make legal decisions. Consult an attorney in your area if you’re seeking legal advice.

Article Source: http://www.articleset.com

About The Author

This free legal information been brought to you by Legal Forms Bank .Biz – a provider of fillable legal forms.» Read more articles by Nicholas Copernicus

What can you do with a Power of Attorney?

I found a good article today that explains what you are able to do with a Power of Attorney. Please take a look if you have the time, it is very insightful. Read Below!

A power of attorney form is a legal form that will allow someone to appoint another person to legally act on his or her behalf. The person who creates the POA (power of attorney) is called the principal and the person appointed to act on the principal’s behalf is called the agent.One need a POA fills for many people is their need to help their aging parents with their financial affairs. Aging is a process we all have to go through but it can be made a much easier process with a POA. When we become physically or mentally debilitated to a point where we don’t want or can’t handle our finances it’s nice to be able to appoint a trusted child or family member as our agent. With a ‘durable power of attorney’ we can give them the power to withdraw money from our bank account to pay bills and manage funds even when we become mentally or physically incapacitated. A general POA is no longer effective when the principal is incapacitated, that’s why they created the durable POA and it’s now recognized in all fifty states. Some people only realize they need a durable POA during a sudden crisis, but most people draw one up along with an estate plan. Most lawyers, including Julian S. Bush, a senior estate partner with Shea & Gould, recommend everyone aged 60 or older should create a durable power of attorney because “that is the danger zone”. He went on to say that it’s equally advisable for younger clients but he has noticed they tend to resist the idea of sharing power over their assets.

There are many different types of POA forms but all of them are revocable. At any time you can revoke a POA with a ‘revocation of power of attorney’. A limited power of attorney is used when someone wants to appoint an agent for a given time period or for a specific task. A limited POA is usually used for things like real estate transactions or when someone needs theirs finances handled while their traveling abroad.

A general power of attorney authorizes an agent to act in all of the principals business or financial affairs. However, when the agent becomes incapacitated, mentally or physically, the powers granted to the agent are automatically revoked. Unfortunately, this is usually the time when a power of attorney is needed most.

Some states, like New Jersey, have laws that allow the use of a ‘springing’ POA. Other states, like New York and Connecticut, don’t allow their locals to use a springing POA. They call them springing power of attorney because they ‘spring’ into action when the principal becomes incapacitated. Sometimes they present problems though because the hospital may demand things like a court order then the court may demand direct evidence of the incapacity, such as a signed letter from the doctor. That’s why most lawyers, like David P. Callahan, a lawyer with Whitman & Ransom, say instead of a springing POA use a durable POA because “The durable power confers immediate authority’, then goes on to say ‘it shall survive incapacity.”

Another use power of attorney are fulfilling is the ability to allow the agent to make decisions about the extent and nature of the principal’s medical treatment. Some people create a separate document for this, while others add them to the regular power of attorney in their estate plan along with other special provisions; which might include giving the agent the power to sign tax returns or access a safe deposit box.

Disclaimer: This article has been written for information and interest purposes only. The information contained within this article is the opinion of the author only, and should not be construed as legal advice or used to make legal decisions. Consult an attorney in your area if you’re seeking legal advice.Article Source: http://www.articleset.com

About The Author

This free legal information been brought to you by Legal Forms Bank .Biz – a provider of fillable legal forms.» Read more articles by Nicholas Copernicus