The Lawyers Weekly - June 25, 2010

THE LAWYERS WEEKLY
June 25, 2010 | 17

Diligence
Continued From Page 16

whether the donation is a “gift by will” for the purposes of the Income Tax Act (Canada), a gift made by a testamentary trust, or a distribution made in satisfaction of a charity’s beneficial interest in a testamentary trust. Different receipting, acknowledgement and other issues will apply depending on these determinations.

Steps should also be taken to ensure that the donor has the requisite capacity at law to make a significant gift, and is not being unduly influenced in his or her decision-making. The consequences of a charity failing to conduct sufficient due diligence on this may be litigation by the donor’s family as to the legitimacy of the charitable gift, either during the donor’s lifetime or after his or her death.

What is the property
being gifted?

A certain amount of due diligence may also be necessary for the property that forms part of the charitable gift.

For example, the charity should satisfy itself that the donor has marketable title to the property, and ensure that all requisite steps to transfer marketable title, such as obtaining consents and/or releases from interested parties, will be completed.

The charity should also determine whether the property has any restrictions, reservations, or other limitations which will survive the transfer of the property from the donor to the charity, and whether it is still in the best interests of the charity to receive such property.

Finally, the carrying costs and marketability of the property should also be investigated

“If a charity fails to make proper inquiries of the donor and does not reflect the correct amount of the donation on the charitable receipt, sanctions such as fines and other administrative penalties could result.

to determine whether acceptance of the gift is in the charity’s best interests in the long term.

What is the value of the gift?

The new proposed split-
receipting regime for charitable
gifts, currently enforced by the
Canada Revenue Agency, has
increased the importance of due
diligence on the valuation of gifts
for charitable receipting pur-
poses. If a charity fails to make
proper inquiries of the donor and
does not reflect the correct
amount of the donation on the
charitable receipt, sanctions such
as fines and other administrative
penalties could result.

Laura West is an associate in the Trusts, Wills, Estates and Charities group of Fasken Martineau DuMoulin LLP in Toronto. She is a member of the executive of the Estates and Trusts Section of the Ontario Bar Association.

We want to hear from you! E-mail us at: tlw@lexisnexis.ca ;

PAUL VISMARA / IMAGES.COM

Facility’s guidelines may
conflict with family’s wishes

Intimacy
Continued From Page 15

There is a spectrum from allowing
no [sexual] relations to having
restrictions.”
“There is a classic balance
between providing protection and
supporting independence,” noted
O’Keefe.

A new study from the U.S., for example, has found that 17 per cent of new HIV infections occur among people over the age of 50. By 2015, the report concluded, over half of people living with HIV will be 50 years of age or older.

In addition, Growing older with
the epidemic: Aging and HIV found
that, “Currently, older adults
experience a near total lack of
attention to their sexual health
from health care professionals and
broad assumptions that they are
not sexually active. Medical profes-
sionals are hesitant to talk with
older adults about sexual health
thereby putting at risk the health of
older [individuals].”
In some cases, the values inher-
ent in a facility’s guidelines—or
their practical expression—may
conflict with the wishes of the resi-
dent’s family. O’Keefe stressed that
the key is providing direction for
those who work with residents.
That direction also encompasses
the resident’s family.

Looking for a cost-effective
way to recruit legal staff …
• Easily post, track, and edit jobs
with our simple online Recruitment Manager
system.

• Search our candidate database— Quick and easy to use, our candidate search tool gives you a constantly refreshed database of qualified legal professionals to shortlist.