Tag: Power of Attorney for Personal Care
The recent Ontario Court of Appeal decision in Dzelme v Dzelme acts as a helpful reminder that even if an attorney has standing to seek a passing of accounts, the Court may still refuse to grant the passing.
John was named as the attorney for personal care for his father, Ritvers, and sought an accounting of Ritver’s financial affairs from his brother Arnis (Ritvers’ other son) who was the attorney for property. Both John and Arnis agreed that John, given that he was an attorney for personal care, could apply under section 42(4)(1) of the Substitute Decisions Act for a passing of accounts without leave. Nonetheless, the Court of Appeal identified that even if a person has standing to apply for an accounting, it remains the discretion of the Court to order a passing of accounts.
In deciding whether to order the passing, the superior court judge made the following findings of fact: (i) both the father and mother were capable when they executed written instructions to Arnis not to produce any financial information about his affairs to John; (ii) the mother maintained this position in response to John’s motion; (iii) a capacity assessment found that the mother was capable of making her own decisions; (iv) a third brother corroborated Arnis’ evidence that he was abiding by his parent’s wishes; (v) the application judge did not doubt that Arnis was following his mother’s wishes; and, (vi) there was no reason to suspect that Arnis was acting improperly with respect to certain transactions.
On this basis, the Court of Appeal upheld the application judge’s dismissal of John’s request for an order that Arnis pass his accounts of Ritver’s property.
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In 2016, it is no longer out of the ordinary for Canadians to call more than one province home. It has also become more common for Canadians to move among different provinces throughout their lives. Either way, it is important to consider the implications of the validity of a power of attorney for personal care that was granted in one province and whether it will be recognized in another.
For those who have executed a power of attorney for personal care outside of Ontario, the Substitute Decisions Act provides at section 85 (1),
As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,
(a) the power of attorney was executed;
(b) the grantor was then domiciled; or
(c) the grantor then had his or her habitual residence.
However, for those who have executed a power of attorney for personal care within Ontario and the attorney is now seeking to use it in another province, the rules as to its validity will vary.
For instance, in Quebec, the Civil Code governs the rules surrounding protection mandates (the equivalent of a power of attorney for personal care). The most significant distinction in this regime is that a mandate given in anticipation of incapacity is conditional upon “the homologation of the mandate” (i.e. the court procedure confirming the validity of the mandate).
A mandatary (attorney) has no authority to act until this step has been completed. Therefore, any acts performed by the mandatary prior to the homologation of the mandate may be annulled. This measure is seen as a protective tool to help circumvent potential power of attorney abuse.
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An article I posted on Twitter yesterday asked the question, “Is a financial plan enough?” The article raises the importance of what the author calls “longevity planning.” Longevity planning means providing financial advice that addresses the lifestyle changes that come with longer life expectancy. For example, if you want to stay in your home indefinitely, will it need to be modified for aging? How will you get the care you need as you age? What transportation options are available in your area? Longevity planning involves preparation for accommodations that may be needed to maintain a high quality of life as individuals can expect to live longer.
Longevity planning shares some similarities with a Power of Attorney for Personal Care (“POA PC”). First, a POA PC addresses some of the same issues, such as health care, nutrition, shelter, clothing, hygiene and safety. Second, a POA PC may include a plan in the form of instructions. For example, the person who gives the POA PC may have strong feelings about where they want to live, or under what conditions they would consent to certain kinds of medical treatment. If instructions are written in a POA PC, the attorney must follow those instructions unless it is impossible to do so.
If the POA PC does not include any specific instructions, or if the instructions don’t apply to the decision that must be made, the attorney must try to find out if the person expressed any other wishes when they were mentally capable. Those wishes could have been spoken or written down in another place. The attorney’s decisions must be based on those wishes, unless it is impossible to do so.
If the person did not express specific wishes, or if it is impossible to carry them out, the attorney must make a decision that is in the person’s best interests. In deciding what those best interests are, the attorney must consider, among other things, whether the decision is likely to improve the incapable person’s quality of life or prevent it from becoming worse.
Thus, third, a POA PC, in part, addresses quality of life concerns. Financial plans and estate plans have traditionally focused on numbers—such as the amount of money one wants to have when they retire or on the distribution of assets. But such planning can ignore the factors that are fundamental to your own and your loved ones’ peace of mind. As important as it is not to procrastinate in one’s estate planning, it is equally important to incorporate quality of life planning as a central element in one’s overall estate plan.
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