Car Crash? Get Legal Help Early

Posted in: ICBC / INJURY- Nov 02, 2015 Comments Off on Car Crash? Get Legal Help Early

Say you’re hit in a car accident that’s clearly the other side’s fault. You may think there’s no need to get legal help straight away – maybe you won’t even need a lawyer. After all, you’re insured by ICBC, and your case is bulletproof, right?

But consider how things can develop if you go it alone.

In a recent case, Mike (all names changed here) was driving his taxi when he was struck by Pete, who drove through a stop sign. The front of Pete’s car hit Mike’s taxi on the driver’s side, pushing it across the intersection. The door area of Mike’s taxi was damaged.

Mike reported the accident to ICBC a couple of days later. ICBC, which also insured Pete, agreed the accident was Pete’s fault and initially confirmed it would cover Mike’s anticipated claims.

A couple of weeks later, Mike went to see the ICBC adjuster in person to tell his story. (An insured person must make a statement or provide a report about the accident to ICBC within 30 days post-accident.) Mike said he suffered major injuries from the collision. He reported neck, shoulder and lower back pain. He also said he suspected he had post-traumatic stress disorder. He hadn’t gone back to work, saying he was now afraid to drive.

The adjuster had a photo of Mike’s car, showing only minimal damage. At this meeting, he noticed some inconsistencies between the injuries Mike described and his own observations. Mike said he’d walked 30 to 40 blocks to the claims centre, but he wasn’t sweating in his thick coat, and he didn’t have any difficulties sitting through the one-hour meeting.

The adjuster was doubtful about the extent of Mike’s injuries and his claim he couldn’t return to work; he didn’t think Mike’s accident was major. So he hired a private investigator on the spot to conduct surveillance on Mike, expecting Mike would likely start a lawsuit over his claims.

For a few weeks, ICBC did some more work on the file and also interviewed Mike again. Months passed – then ICBC totally rejected Mike’s claims for compensation, arguing he’d made false statements and breached his ICBC policy.

Only then did Mike hire a lawyer, and a lawsuit was started.

Mike’s lawyer wanted to see the private investigator’s report. But ICBC refused to hand it over. The issue the B.C. Court of Appeal court had to decide was whether ICBC had gotten that report to resolve Mike’s claim or, instead, in expectation of a court fight. Also, was the expectation of a lawsuit ICBC’s “dominant purpose” for getting the report?

The court decided the report was “privileged” and ICBC didn’t have to pass it over here. This left Mike and his lawyer in the dark about its contents. Very often such surveillance reports play a critical role in this kind of lawsuit.

If hurt in an accident, see a lawyer early on to protect your rights and help you deal with ICBC from the get-go.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

Trouble Sorting Things Out With Your Ex? There’s Help

Posted in: FAMILY LAW- Nov 02, 2015 Comments Off on Trouble Sorting Things Out With Your Ex? There’s Help

It’s no secret that settling disputes with your ex after you’ve split can be difficult. And where children are involved, you can’t just walk away from each other, as you’ll both want to be involved in the kids’ lives.

Going to court to sort things out is not always the best. And with accusations flying back and forth and the adversarial nature of the whole exercise, it can result in increased bitterness and poison an already broken relationship further, no matter who “wins.”

But there’s some good news. The new family law that’s been around for a couple of years now is refreshing. It encourages other preferred ways of dealing with family law disputes, with court as only a last resort. These other options offer a wide spectrum of approaches for sorting things out so there’s a better chance you each get what’s most important to you and the children come out ahead.

Here’s a quick rundown.

Mediation: The two of you agree to engage a neutral individual, who must be properly qualified and trained as a mediator, to help you negotiate compromise solutions to thorny issues. She will help you see what’s key to each of you, so that you can settle on a solution that works for you both. Unlike a judge or an arbitrator, a mediator doesn’t hand down a decision or award, so there is no imposed solution. Mediated solutions, perhaps because mutually agreed, therefore tend to stick. Mediation is relatively informal, and can be surprisingly successful.

Arbitration: You both agree to engage a neutral individual, who is a properly qualified and trained arbitrator, to listen to both sides. The arbitrator then makes a decision, called an “award,” deciding the tough issues before her, like a private judge. This is a more formal process, though less so than court, and the arbitrator’s decision is binding on both of you.

Mediation/Arbitration: This is a combination of mediation and arbitration. The two of you agree to try, with the help of the neutral mediator/arbitrator, to work out a compromise solution. But should that fail, the two of you also agree that the mediator/arbitrator can make an arbitration award, which is binding on both of you. So unlike mediation, there can’t be a deadlock, and unlike arbitration, there’s a better chance at a negotiated compromise up front.

Parenting Coordination: This can come into play where there’s a separation agreement or court order which covers parenting arrangements, but the two of you have continuing conflict about how to carry them out. Pick-ups and drop-offs, suitable recreational activities, birthday parties on the other parent’s time, play dates, the start and end dates of holidays like spring break (Friday or Monday?), are just some of the more frequent flashpoints. A properly qualified and trained parenting coordinator, appointed by mutual agreement or the court, acts as a mediator/arbitrator to try and work out a mutually acceptable solution or, if that fails, makes a “determination” that is binding on both of you.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

Why You Need An Enduring Power Of Attorney

Posted in: Real Estate- Nov 02, 2015 Comments Off on Why You Need An Enduring Power Of Attorney

By the time you reach late middle age, you are at higher risk of strokes, dementia, Alzheimer’s and other incapacitating illnesses. These sad events can occur quite suddenly, out of the blue.

If something like this happens to you, questions may arise about whether you’re still mentally fit to put paperwork in place authorizing others to act in your place. There may not be enough time to make such arrangements, or it may be too late. And these mental capacity issues can lead to bitter disputes among family members.

In one recent case, two sides of a family were pitted against each other in a heated court battle. One group of siblings argued their mom had lost her ability to make independent decisions by a certain date due to rapidly progressing Alzheimer’s disease. The other faction put material before the court suggesting otherwise. The court heard that what distressed the mom most was the two groups’ fighting.

What should you do to protect yourself and avoid these problems?

The law presumes that an adult person is capable of making independent decisions about their financial affairs. The law also presumes that you’re capable of making or changing an “enduring power of attorney.” This is true unless the contrary is demonstrated. (Similar rules are in place for health care decisions and representation agreements).

So it’s best that you think about whom you would wish to act in your place well before anyone can suggest you’re no longer fit to make that choice. The way to express your choice, so far as your financial affairs (not your health care) is concerned, is through a document called an “enduring power of attorney.”

With a power of attorney, you can appoint someone you trust as your agent or “attorney” to act for you in financial matters. But a power of attorney ends if you become mentally incapable.

Not so for an enduring power of attorney, which must specifically state that your attorney’s power is to continue despite such mental incapacity.

This makes an enduring power of attorney very useful. It allows your attorney to make financial decisions for you, perhaps only once you’re no longer able to – without someone (maybe not who you would pick) having to go to court to be appointed a “committee.” That’s an expensive and time-consuming process, which would otherwise have to be undertaken. (A representation agreement for health decisions also avoids the committee court process.)

As we all know, abuses are sometimes committed by the very people who are supposed to protect your interests, especially if you are vulnerable or elderly. There are rules to help prevent that. Some spell out tests for determining your capacity to sign these estate planning documents, set requirements on who must witness and sign them, and say that except for your spouse, parent or children, paid health care workers can’t act as your attorney (or representative).

You should plan ahead and take action. Your lawyer can explain available options and ensure all rules and requirements are followed.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer