This question often perturbs individuals as they hit their early 50’s. We all assume that our family will take care of us when we are unable to do so ourselves, however, one rarely considers the legal implications.
Which family member will be your Power of Attorney?
Who will determine how your money, your assets and health will be taken care of?
“I’ll let my kids decide” mentality can result in disaster.
With too many voices it becomes difficult to decipher what is best for the elderly individual. Everyone believes that they are acting in the best interest of the elderly person but there is no way to confirm what the elderly person may want. Conversely, there may be one family member trying to serve their own best interest while the rest of the family looks out for the elderly person. No one accounts for these disputes.
What is a Power of Attorney?
A Power of Attorney is a legal document that allows a substitute decision maker (often a loved one) to act on behalf of a person who is deemed incapable of independently making informed decisions.
Why is this of concern?
With increasing numbers of elderly individuals being diagnosed with dementia, much of the elderly population is losing its ability to make decisions and has yet to put in place a Power of Attorney. Consequently, family members are forced to dispute amongst one another to determine what is best for their loved one. Due to multiple voices and different perspectives many family members quarrel and in some cases, pursue legal action for guardianship and Power of Attorney.
Further complications arise when someone is misusing influences as a Power Of Attorney. In Ontario, there is no mechanism to track the actions of substitute decision makers. For instance, the decisions made my substitute decision makers are not evaluated until it is brought before a court or tribunal. Accordingly, if the substitute decision maker is misusing the money of an elderly person, it is not examined unless someone brings it to the attention of the court.
What if there is no Power of Attorney?
If there is no Power of Attorney appointed, the system falls into a default hierarchy of – spouse/common-law partner, adult children, relatives and then eventually the province.
What is being done about this?
The Law Commission is now looking to review and amend legislation to take into account these new obstacles. The Law Commission is launching public consultations in the summer to allow individuals to have an opportunity to share their stories, concerns and experiences in order to create legislation that reflects current concerns. Lauren Bates is overlooking the review of legal implications of legal capacity, decision- making and guardianship.
What can you do now?
If you have experienced challenges with dealing with a Power Of Attorney issue, contact the Law Commission via a letter or e-mail to voice your concerns. You can take an active part in shaping Canadian legislation.
Secondly, if you do not have a Power of Attorney in mind, sit back and truly reflect who would best represent your wishes and manage your finances. Also, keep in mind that family members are not the only choice. Be honest with yourself and take the time to evaluate so you can make an informed decision.
Finally, when you do decide on a Power of Attorney ensure that you are clear and concise about how you want your property distributed and health looked after. Ambiguities can result in confusion and legal loops holes.
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Points of Discussion:
1. How do wills work in your country?
2. Do you have a will or Power of Attorney? What factors did you consider?
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