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estate planning powers of attorney

Making Decisions Under a Power of Attorney

Siblings often don’t get along, even at the best of times. Add the stress and emotion that accompany having to take care of an aging parent and relations can get even more strained.

estate planning powers of attorney

Acting under a Power  of Attorney? Keep the lines of communication open!

I recently met with Ottawa residents and siblings Derrick and Sherry (not their real names). Their mother had recently had a massive heart attack and suffered some brain injury as a result. As their mother had granted them a Power of Attorney for Personal Care, Derrick and Sherry had to decide where she should live as she was currently incapable of making this decision for herself. She had also appointed them as her Attorneys for Property.

Derrick and Sherry often disagreed on many things including where their mother should live.  They didn’t know how to they were going to resolve this impasse. I could clearly see that they both wanted the best for their mother but each had their own ideas of what this should be. The doctors had said their mother’s prognosis was uncertain which made the decision even more difficult. They also had to consider their mother’s finances as she lived on a fixed income.

I explained to Derrick and Sherry, that when acting under a Power of Attorney, the law sets out the duties and responsibilities of the Attorney and provides guidance as to how decisions are to be made. Attorneys in Ontario can look to the Substitute Decisions Act.  Decisions made by judges in various court cases are also helpful in deciding what to do.

When making decisions as their mother’s Attorneys for Personal Care regarding their mother’s placement, there are various factors to be considered:

• Prior Wishes

If they are aware of a prior wish expressed by their mother while capable, decisions must act in accordance with that wish or instruction.  If they uncover more than one wish, a later wish prevails over an earlier wish. If they cannot find any evidence of an expressed wish or if it is impossible to make a decision in accordance with an expressed wish, then they must make a decision in their mother’s best interests.

• Best Interests

When considering what decision would be in their mother’s best interests, they should take into consideration the following:

(1) their mother’s values and beliefs;
(2) their mother’s current wishes;
(3) the effect of any decision on their mother’s quality of life; and,
(4) whether the benefit from any decision outweighs the risk of harm of an alternate decision.

• Participation

They have a duty to try to explain the situation and the various options to their mother and encourage her participation in the decision-making to the extent that she is able to participate.

• Consultation

They also have a duty to consult and cooperate with supportive family and close friends as well as the persons from whom their mother receives care.

• Independence

As much as possible, they must seek to foster their mother’s independence.

• Least restrictive course of action

I cautioned Derrick and Sherry that they must choose the least restrictive course of action that is available and appropriate for their mother’s particular situation.

By the end of the appointment, Derrick and Sherry were freely discussing their mother’s options. The lines of communication had been opened once again. All they needed was a framework within which to discuss and make decisions on behalf of their mother.

Derrick and Sherry are not alone. If you are acting as an Attorney for Property or Personal Care, or maybe even both, for a family member or friend, make an appointment to meet with one of our lawyers. It is not an easy job and you need the advice of a qualified practitioner who can advise you of your duties and responsibilities.  When obtaining legal advice to assist you in properly carrying out your duties and responsibilities, such costs can usually be paid from the assets of the incapable person for whom you are acting.

Reproduction of this blog is permitted if the author is credited.  If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information.  Please consult a lawyer or other professional to determine how the information in this blog might apply to you.

Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.

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