Options for Seniors Without a Power of Attorney (POA) to Protect Assets in Case of Incapacity

Introduction

We will all experience aging at some point in our lives. The movie "The Curious Case of Benjamin Button" delivered the philosophical aphorism that life is transient and change is inevitable. Watching this movie had a profound impact on my perspective on aging. When I first watched the film, I was young and didn't grasp the underlying message. However, as I witnessed my aging parents gradually lose their independence and rely on us for care, I couldn't help but draw parallels to Benjamin Button's life and his unique aging process. The story enlightened me that at some stage in our lives, we may lose our abilities and require support from others.

Imagine a scenario where unforeseen circumstances leave you unable to make crucial decisions. In such a situation, a power of attorney (POA) can be your lifeline, providing a profound sense of relief and peace of mind. This legal tool empowers a trusted individual, your chosen 'attorney,' to act on your behalf, making critical decisions and representing your interests. Whether managing your finances or ensuring your personal care, a POA is your essential protection. It's important to remember that in Canada, an 'attorney' is not necessarily a lawyer. Your appointed attorney can step in to make decisions only if you become incapable of doing so yourself.

In 1990, the Ontario government introduced the Substitute Decisions Act (SDA) to govern substitute decision-making for property and personal care. This act ensures that your interests and well-being are protected even if you cannot decide for yourself.

Facts

A young man recently contacted us on behalf of his father. The father, who immigrated to Canada over 60 years ago, can communicate in English but prefers a clear explanation of the POA process in Cantonese. Understanding the importance of clear communication, the son, showing great foresight and responsibility, wanted to complete the POAs immediately. We promptly arranged a meeting the next day to initiate the POA process, ensuring that the father felt respected and understood in his preferred language.

During the meeting, I ensured the father could appoint the POAs. It's important to understand that a person can establish a continuing POA if they truly grasp the value of their property, their responsibilities towards their dependents, and the decision to grant the authority to manage their property to a third party (the attorney). I told my client he could change or revoke the POAs to suit his needs, giving him a sense of control and flexibility. When he mentioned his wife's early diagnosis of dementia and her current situation on life support at the hospital, I empathized with the urgency and significance of the POA in this situation.

 The following day, the son contacted us again because his father wanted to make a POA for his wife. This situation is complicated due to his wife's early-onset dementia and her reliance on life support, which renders her unable to make decisions independently. Nonetheless, there are potential solutions to address this issue.

Potential Solutions for Mentally Incapable Elderly without POAs

Personal Care

It is essential to plan for the possibility that you may become unable to make decisions about your care. If you don't have a POA, someone could go to court to become your Guardian of the Person. If you are still mentally capable, you may be able to appoint a POA, but this rarely happens. In addition, healthcare providers need consent from their Substitute Decision-Maker (SDM) for treatment if they are mentally incapable.

The Health Care Consent Act (HCA) in Ontario sets out the hierarchy of Substitute Decision Makers (SDMs). It outlines who can act as an SDM for decisions related to health treatment, relocation to long-term care homes, and personal assistive services in long-term care or retirement homes.

The hierarchy of SDM for Personal Care is as follows:

• Your Guardian of the Person

• Your attorney

• Someone appointed by the Consent and Capacity Board

• Your spouse or partner

• Your parent or child

• Your sibling

• Any other relative

• The Office of the Public Guardian and Trustee

Legal requirements for SDM Personal Care Must:

• Be at least 16 years old

• Be mentally capable

• Be available and willing to make decisions for you

• Not be prohibited from acting as your SDM by a court order or separation agreement

• They cannot be paid to give you health care or certain other services unless they are your spouse, partner, or family member.
  

Definition of Spouse or Partner under the HCA

According to the law, a spouse is someone you are married to. If you are not married, your partner may still be considered your spouse if any of the following conditions are met:

• You have been living together for at least one year.

• You have been living together for less than one year but have a child.

• You have a cohabitation agreement in place.
  

What is A Cohabitation Agreement

A cohabitation agreement is a legal contract between unmarried partners that outlines how to handle matters if you live together, if you separate, or in the event of a death. According to the law, a partner is generally someone with whom you have lived for at least a year and with whom you have a close personal relationship of "primary importance." It's important to note that the terms "spouse" and "partner" may hold different meanings in other areas of the law.

Property

It is a common misconception that family members can automatically make decisions regarding someone's property or finances if that person becomes unable to do so themselves. Legal documentation is necessary to grant this authority. For financial decisions, a POA for Property is required. Without this document, the court process is needed to appoint a representative, or a guardian will be appointed by the Ontario government's Office of the Public Guardian and Trustee or by the court.

Your SDM for Property must be:

• mentally capable

• at least 18 years old

Guardian

If no Power of Attorney exists, the court must appoint a guardian, which involves a complex application process that results in substantial expenses, uncertainties, and delays.

Conclusion

Life is full of unexpected events that we cannot control. Responsible adults may consider creating a POA to protect their interests and lighten the burden on their families. We understand the complexities and challenges you may face, and we are here to offer guidance and support. Should you encounter this situation, please get in touch with our Ottawa Office.