Power of attorney and incapacity planning: Do you have a plan?

Longer life expectancy doesn’t always mean good health throughout one’s life. Statistics Canada data suggests Canadians, on average, will outlive their good health by up to 13 years. That’s why having powers of attorney (PoA) and a plan for incapacity is so important.

Unfortunately, a PoA is not a priority for many. While there are countless articles and seminars reminding clients (and advisors) to write a will, a PoA is like the ignored middle child of estate planning.

Clients should give careful thought to who they appoint under a power of attorney to act on their behalf if incapacitated. They should also discuss specific wishes regarding personal care and management of property and finances before they’re incapacitated.

Failure to discuss or document these wishes can lead to conflict and even litigation, as demonstrated in an Ontario case (White v White, 2017 ONSC 4550) involving two brothers acting as their mother’s attorneys for property.

The mother was residing in a long-term care home and had advanced dementia. In 1985, she had signed a will appointing her husband (the brothers’ father) as her executor and her sons as alternate executors. In 1994 she signed a continuing power of attorney for property appointing her husband as her attorney for property and her sons as alternate attorneys. Her husband died in 2013 and the brothers assumed responsibility for managing their mother’s financial affairs. She did not have a power of attorney for personal care.

The co-management did not go well. The older brother sought to be the mother’s sole guardian — responsible for making personal care and financial decisions — on the grounds that the brothers could not work cooperatively. He described working with his younger sibling as “a struggle at best and a battleground at worst.” The brothers disagreed about what clothing their mother should have, her diet, where she should live, whether other people should spend time with her, end-of-life decisions — even issues surrounding her religious beliefs.

However, the court found no strong or compelling evidence of neglect or misconduct by the younger brother that would warrant his removal as an attorney for property. Both brothers were appointed as their mother’s guardian for personal care.

In short, the fact that the brothers disagreed on several issues wasn’t grounds to remove one as attorney for property. They would have to sort it out themselves.

This case provides several takeaways for incapacity planning.

• Have a complete set of estate planning documents: The mother did not have a power of attorney for personal care. This was a lost opportunity to provide clear instructions regarding personal care and end-of-life decisions. Documenting her wishes may have reduced conflict between her sons or even helped avoid litigation altogether.
• Less is more: The more people appointed to act under a power of attorney, the greater the opportunity for conflict. Although parents may feel obligated to name all their children, it may be wiser to choose the child most capable of handling the responsibility. If parents appoint more than one child, they should choose those with a history of working well together to reduce the potential for conflict.
• Communicate: Clients should discuss and document their specific instructions to be carried out if they’re incapacitated. These should include health care, providing companionship, food preferences, living arrangements and even attending religious services. These issues may seem easy enough to navigate but providing clear direction while the client is still capable may go a long way to preserving the peace if the client becomes incapacitated.

A will is a good start, but it’s important to remind clients that their planning doesn’t end there. End-of-life conversations may be difficult but they can prevent a lot of hassle — or worse — down the road.

Akua Carmichael, LL.B, J.D., TEP is director, tax and estate planning services, with Empire Life. She can be reached at Akua.Carmichael@empire.ca

Akua Carmichael

Tax & Estate

Akua Carmichael, LL.B, J.D., TEP, is director, tax and estate planning services, with Empire Life. Akua.Carmichael@empire.ca