“I have a client with a mother in her nineties who lives by herself and doesn’t want to leave her home. She is showing signs of dementia and does not have a power of attorney in place. She also believes that anyone who tries to help her is after her money, including her daughter.” The lawyer pauses and admits, “So there’s little I can do at this point.”
Suzanna Winsborough, LLB, is an expert in business and estate succession at Keyser Mason Ball, LLP, and wants people to recognize the importance of planning ahead to save grief and money in the future.
As she relates it, the mother should have a capacity assessment done and if she says, “No, I’m fine,” then a court order will be required to have an assessment conducted. After that assessment, the assessor will determine the capacity of the mother to live on her own. If she is found to lack the capacity to care for herself, then the daughter will have to bring an application to the court for guardianship in order to make decisions for her mom’s personal care. And if all this sounds emotionally and financially draining—you’re right.
“Elderly parents are living longer, and increasingly, dementia becomes an issue,” says Winsborough. If the mother had a power of attorney in place naming her daughter as the attorney, her daughter could have avoided a lot of heartache and hassle.
In Ontario, there are two types of powers of attorney: a Power of Attorney for Personal Care and a Continuing Power of Attorney for Property.
Power of Attorney for Personal Care
A Power of Attorney for Personal Care allows you to appoint a person (or more than one) to make decisions on your behalf regarding medical treatment, health care, nutrition, shelter, clothing, hygiene and safety, for example.
To draft a Power of Attorney for Personal Care, you must:
1. Be at least 16 years old;
2. Have the mental capacity to understand whether the attorney you choose is truly concerned with your well-being; and
3. Understand that you may need this person to make decisions for you.
This only comes into effect if you are found to be mentally incapable of making personal health care decisions for yourself. At this point if you don’t have a Power of Attorney for Personal Care in place, a family member will typically be able to make certain decisions for you, unless a person is appointed by the Consent and Capacity Board or a guardian is appointed by the court. Where you have no family members willing or able to act as your representative, a government official known as the Public Guardian and Trustee will make these decisions.
Continuing Power of Attorney for Property
With a Continuing Power of Attorney for Property, you can name who you want to look after your financial affairs, deal with your property, pay your expenses and provide for your support. It becomes effective upon signing and remains valid, or “continues,” even if you subsequently become mentally incapable.
To draft a Continuing Power of Attorney for Property, you must:
1. Be at least 18 years old;
2. Know what property you have and its approximate value;
3. Be aware of your obligations to the people who depend on you financially;
4. Know what you are giving your attorney the authority to do;
5. Know that your attorney is required to account for the decisions he or she makes about your property;
6. Know that, as long as you are mentally capable, you can revoke your Continuing Power of Attorney;
7. Understand that if your attorney does not manage your property well, its value may decrease; and
8. Understand that there is always a chance that your attorney could misuse his or her authority.
Keep in mind that if you don’t have a Continuing Power of Attorney for Property, the Public Guardian and Trustee has broad powers under the Substitute Decisions Act, 1992, to manage your property should you become mentally incapacitated, and charges a fee for doing so. The process for a family member to become your guardian of property after the Public Guardian and Trustee has been appointed can be time-consuming and costly.
For more information, contact Suzanna Winsborough at 905-276-0434 or [email protected]