Planning for Incapacity

February 23, 2015 Hull & Hull LLP Capacity, Estate Planning, Power of Attorney 0 Comments

According to the World Health Organization (the “WHO”), approximately 35.6 million people around the globe are currently living with dementia. Given the aging boomer population, the WHO estimates this number will double by 2030 and more than triple by 2050.

Yet, despite the increased prevalence of dementia, many people still fail to consider and/or adequately plan for incapacity.

While not a subject most people like to contemplate, it is important for you to consider who you would like to make financial and medical decisions for you in the event you are unable to do so for yourself.

Disputes between family members, each of whom believe themselves best suited to make decisions relating to an incapable individual are becoming increasingly common. Without a thoughtfully considered plan, your diminished capacity could become the source of tension and disagreement amongst those closest to you. Not only are such disputes counterproductive and costly, but they can have long-term damaging effects on relationships between your family members.

You can minimize the likelihood of such disputes by executing powers of attorney. Through such powers of attorney you can nominate an individual (individuals) who you know and trust to be your substitute decision-maker(s) while you have full capacity to do so.

There are two specific types of powers of attorney relevant to dementia:

(1) Continuing Power of Attorney for Property (“CPOA”) – which will give the individual (or individuals) appointed the right to do anything with respect to your property that you could do if capable (except make a Will).

Part I of the Substitute Decisions Act sets out the law relating to the CPOA.

(2) Power of Attorney for Personal Care (“POAPC”) – which will authorize the individual (or individuals) appointed to make decisions regarding your health and personal care.

Part II of the Substitute Decisions Act sets out the law relating to the POAPC.

A detailed fact sheet published by the Office of the Public Guardian and Trustee (the “PGT”), which provides further information about both the CPOA and POAPC, can be accessed here.

In the event you become incapable without having executed a CPOA or POAPC, a guardian must be appointed to make such decisions on your behalf. In most cases the PGT will be appointed as statutory guardian by operation of law. In the event your spouse, partner, children and/or relatives wish to be appointed as your guardian instead of the PGT, they may be required to bring a court application authorizing their appointment.

Accordingly, without a plan in place, your diminished capacity could become a costly and time consuming issue for your loved ones to navigate, and a potential source tension between your family members.

Having powers of attorney prepared does not take long and it is relatively inexpensive, certainly less expensive than the emotional cost of a dispute between family members or the financial cost of having to bring a guardianship application.

Thank you for reading,

Ian Hull

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