One of the questions we often get asked by people who are planning their estates or for incapacity is who they should appoint to be the executors of their will or their substitute decision makers if they become incapable. (In Ontario, substitute decision makers during incapacity are known as attorneys for property or personal care if appointed by the individual in a power of attorney or guardians for property or personal care if appointed by the Court - see our Client Advisory Powers of Attorney for more information).
It is quite remarkable to think that notwithstanding our increasingly aging demographic,1 the recognition of the rights of older persons as a distinct group has been largely absent in the field of human rights. Only recently the rights of older persons as a distinct group have begun to emerge and slowly become reflected in legal thinking and legislative change. There is increasing movement towards creating a United Nations international declaration or convention on the rights of older persons as older persons' rights have not generally been expressly recognized at the international level. One of the objectives for creating an international convention is to provide a concrete overarching legal framework for use by government around the world, including by guiding policy-making in order to address the distinctive human rights issues faced by older persons.
An important decision in estate planning is who to name as attorney for property. As discussed in other posts, an attorney for property is given the authority to manage your assets and finances while you are living but are incapable of doing so. A power of attorney for property or equivalent allows your chosen attorney to step into your shoes to ensure that you, your financial affairs and your dependants are properly looked after during any period of incapacity (whether permanent or temporary).
Estate planning documents (such as a will, power of attorney for property, power of attorney for personal care, Henson-type trust and/or inter vivos trust) are the legal framework of an estate plan--the "apparatus"--which can seem to be a tricky network of legal rules, directions, and often unavoidably, a lot of legalese to navigate. Estate plans are sometimes short on information or guidance regarding the "soft issues": the relationships, context, goals, aspirations, vision, preferences, history, etc. that inform the overall structure.
One question that we are frequently asked is "When does my role as an attorney for property begin?" Often this question comes from an adult child, who wants to know either when they should start helping Mom or when they can start helping Dad with paying bills, making investment decisions, etc. It usually arises because the child sees that Mom or Dad needs a little (or a little more) help now, and they want to make sure that the parent who took care of them is now taken care of in turn.
In my first year of law school--1978--Ontario introduced new legislation to allow a power of attorney to survive incapacity. It's amazing to think that prior to 1978 only legal guardianships through the court process (then called "committeeships") were available to allow a decision-maker to act on behalf of an incapable person.
In our August 18, 2015 post we raised the idea of regular check-ups for your estate plan in order to keep it current. Periodic reviews help to keep you refreshed about the details of your estate plan so that it can be maintained and changed when necessary--ensuring it will carry out your objectives when it comes into effect.
With the arrival of fall, many readers may be preparing to escape the pending cold by travelling to warmer climates for extended stays. In our February 12, 2014 blog post we highlighted the potential concerns and practical issues if you become incapable of making either financial or personal care decisions (whether permanently or temporarily) while outside your 'home' jurisdiction, including if you have assets located there.
Your estate plan may only be truly up-to-date the day you sign your estate planning documents. This statement no doubt may dismay you and perhaps be unwelcome, in particular given the effort, time and expense that goes into preparing wills, trusts and powers of attorney. The reality is that our lives are in a constant state of flux.
Those of you who watch U.S. network T.V. news at night are probably familiar with the catchphrase "It's 11 (or 10) o'clock. Do you know where your children are?". Many comedic versions of this phrase have been coined over the years, and it has become part of our modern pop culture. Despite the obvious satirical uses, the message can still be a serious one, reminding us to check on those things most important to us, which we can sometimes lose sight of in our busy lives. Like so many things, powers of attorney for property and personal care are sometimes overlooked until they are most needed, and then finding and using them can sometimes prove challenging.