Picture this scenario: Mr. and Mrs. X are in their mid-80s and have been married for almost 60 years. They live in Ontario and have two adult children who live in the same city. Several years ago, they prepared new Wills where they left everything to each other and then equally to their two children. They also made new powers of attorney for property and for personal care. In each power of attorney, they appointed each other and then either of their two children to act as attorney. Sometime after they made their new Wills and powers of attorney, Mrs. X was diagnosed with dementia. It is clear that now she is having trouble coping with her daily tasks. Mr. X is having trouble accepting Mrs. X’s situation and by using Mrs. X’s power of attorney, is refusing to allow Mrs. X access to any follow-up testing, treatment, or care for her dementia. He feels that the best place for Mrs. X is in their home but it is clear that he cannot look after Mrs. X. What can the children do?
This is a very real and difficult problem.
There are two kinds of powers of attorney: Continuing Power of Attorney for Property (dealing with all financial and real estate matters) and Power of Attorney for Personal Care (dealing with personal care issues).
Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property (often called a “power of attorney” or “financial power of attorney”—in this article, I will call it a POA) allows a person who is appointed an attorney to do anything that the donor could do, except make a new Will.
Exceptions or restrictions can be drafted into the POA, but normally none are included. Quite often, a POA is operative all of the time, so you can run into the situation where, for example, the attorney can make a decision about reinvesting a GIC or term deposit only to have that decision overturned by the donor in person, or vice versa.
Although not often done, a restriction can be inserted into a POA to allow it to be operative only if the donor is assessed by a medical professional as being incapable of managing their own financial affairs. Clearly it is advisable for a donor to decide whether they want the POA operational all of the time or only after being assessed as being incapable.
Normally, as in the case of Mrs. X, a primary attorney is appointed, such as Mr. X, and a secondary attorney is appointed, such as Mrs. X’s two children. Normally, as well, the primary attorney must be unable or unwilling to act before the secondary attorney(s) are allowed to assume the attorney’s duties.
Power of Attorney for Personal Care
A Power of Attorney for Personal Care (I will call it a POAPC) allows a person who is appointed an attorney for personal care to make personal care or treatment decisions that the donor is unable to make on their own. In the case of a POAPC, the power or authority does not begin unless the donor is assessed or determined to be incapable of making those personal care decisions themselves. Normally as well, there is a primary and secondary attorney for personal care and the primary attorney must be unable or unwilling to act before the secondary attorney(s) are allowed to assume the attorney’s duties.
Mr. and Mrs. X’s Situation
Mr. and Mrs. X’s situation is serious. Mr. X, using Mrs. X’s POA, is making all of the financial decisions for both of them. Moreover, he is also making (or not making) all of Mrs. X’s treatment decisions as well.
This situation may continue for some time until either Mr. X develops his own health problems and can no longer cope or Mrs. X becomes hospitalized for some reason where her true condition is determined and hopefully Mrs. X’s doctor can convince Mr. X or his children to deal with the problem.
The role of the children (I will call them Y and Z) is really secondary until or unless Mr. X no longer is able or wants to make financial or treatment decisions for Mrs. X.
If Y and Z feel that Mr. X’s decision-making for Mrs. X is not in the best interest of Mrs. X, they will have no choice but to bring a Court Application pursuant to the Substitute Decisions Act of Ontario to remove Mr. X as his wife’s attorney for financial and personal care matters and to appoint one or both of them.
To remove Mr. X as Mrs. X’s attorney for financial matters, Y and Z will have to convince a judge that Mr. X is not acting in the best financial interest of Mrs. X. They would have to show that Mrs. X’s financial assets are being mismanaged or at
very least, not managed and that, as a result, Mrs. X is suffering financial harm.
To remove Mr. X as Mrs. X’s attorney for personal care, Y and Z would have to convince a judge that Mrs. X is incapable of making her own personal care decisions and that Mr. X’s decisions on behalf of his wife are harming her in some way. The proof in these types of Applications is a combination of anecdotal (affidavits from neighbours, family and investment/medical advisors) and documental (bank statements, hospital records).
I have found that such Applications are often very difficult on the family dynamics and can cause irreparable harm to the family unit. There are, however, situations where this type of action must be taken by a family to protect a family member
from inadvertent or advertent abuse.
The cost of such Applications is also often a factor. Not only are there legal fees involved in such a Court Application, but there are many related banking/medical/hospital fees that are often incurred to present as a complete a picture as possible to the court.
Solution for Mr. and Mrs. X?
I find that in preparing POAs and POAPCs, one size does not always fit all. Sometimes the solution to Mr. and Mrs. X’s problem is to make Mr. X as well as Y and Z equal attorneys rather than Mr. X first and Y and Z second. Sometimes it is to bypass Mr. X completely in favour of Y and Z. Very often this type of advice is rejected by Mr. and Mrs. X as they may initially feel that they would rather trust each other than their “young” children to make financial and personal care decisions. This decision may be valid at the time but as the years go by, the POA and POAPC made 10 or 15 years ago should be revisited and updated.
There is obviously no easy answer to the problem of Mr. and Mrs. X. Open family discussion between parents and children during the entire aging process would certainly help.
John Peart is a partner with the Ottawa law firm of Nelligan O’Brien Payne LLP (www.nelligan.ca) and part of its Wills and Estates Group. John is certified as a specialist in estates and trusts law by the Law Society of Upper Canada and is also a member of the International Society of Trust and Estates Practitioners.
[This article was originally published in the September 2011 issue of Fifty-Five Plus Magazine.]