CAROL IN YOUR CORNER
There are conversations we usually avoid, but sooner or later certain topics have to be addressed. Among them are Wills, and deciding who should hold our Power of Attorney for Property and Power of Attorney for Personal Care. Wills should be reviewed regularly and updated if necessary. We don’t want family members to be at odds, even though we won’t be here to witness the arguments about what someone thought we said, and what the will seems to say.
As for POAs, both kinds are province specific. That is, the forms are tailored by and for each province. Although the title of the document might vary, they are designed to fulfill the same function. In the case of a POA for Property, the “grantor” gives another person authority to act on his or her behalf to manage their finances, should the grantor be unable or unwilling to do so. The person appointed could be called an attorney, a proxy or a representative, depending on the jurisdiction.
In some provinces you can grant a “General Power of Attorney”, which allows someone to manage finances and property while you are mentally able. If the grantor becomes mentally unable to do so, then the General POA ends, and what is required is a “Continuing or Enduring Power of Attorney”. In many cases, the grantor will choose a “Continuing or Enduring Power of Attorney” right from the get-go in order avoid this problem. In Ontario these regulations come under the Substitute Decisions Act of 1992.
It can get complicated if someone has property in one or more provinces. A power of attorney valid in one province may not be valid in other provinces unless the province’s legislation recognizes it. Therefore it’s important to make sure any POA complies with the requirements in each province. For example, if the grantor has assets in Alberta, for example, the POA must be drawn up according to the regulations of that province. The “Attorney”, however, is not required to live there. It is also recommended that a substitute be appointed if the original “Attorney” cannot fulfill his or her duties or resigns.
The third type of POA is for Personal Care. In some jurisdictions it might be called an Advanced Health Care Directive or a Personal Directive. If the grantor becomes mentally incapable, or because of illness or accident is unable to make decisions, the”Attorney” has the authority to act on the donor’s behalf. They can determine the kind of health care, nutrition, personal safety, quality of food, grooming, clothing, where the grantor should live, and even end of life decisions. These could include whether not to choose “passive treatment” with the “Attorney” only receiving reports and whether or not “heroic” measures should be used to keep the donor alive.
In Ontario, for example, if there is no Power of Attorney for Personal Care, there is an established hierarchy: such as wife for husband, or vice versa; oldest child, etc. It can be very stressful for the “attorney” or any family member to make these choices in the absence of one of those difficult conversations that are so important but that we all try to avoid.
It is a given that we will do our best to choose someone trustworthy for both types of POA. And it is always in the power of the donor, as long as he or she is competent, to rescind a POA and grant it to someone else. In my years at CARP I remember a few occasions when one sibling suspected that another sibling who had Power of Attorney for an aged parent was mistreating her or mismanaging her funds. In Ontario it is possible to appeal to the Public Guardian and Trustee, who has the power to investigate these claims.
While your attorney” can access your bank account while you are alive, when you die, your bank account is frozen, unless you have a joint account. It can take up to six months – sometimes longer- for a will to be probated. If there are bills to be paid, it is wise to have some trusted person as the other holder of your joint account.
There are government websites where more detailed information is available, such as this Federal Government of Canada website for seniors and their page on Powers of Attorney.
Another excellent website with explanatory videos and scenarios can be found here.
Kotler and his partner, Barry Fish, are experts in this area. Les has written several books which detail the kinds of legal problems people can get into with badly drawn up wills or POAs, made even more complicated these days of blended families.
And the last suggestion: it’s useful to have an up-to-date list of credit cards, bank accounts, investment information, computer password, and wherever they and the copy of your will and POA are tucked away, make sure some trusted family member knows where to find them, just in case….
April 21, 2015