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Someone To Watch Over You

Not to beat a dead horse, but it bears repeating: our population is aging. With an increase in the number of people in our society over 65 comes a variety of social and economic challenges, some of which you are no doubt already familiar with. One issue which many people may not have considered, but which is almost certain to affect them sooner or later, is the question of who will make their medical and other personal care decisions when they are not able to do so.

Choosing a substitute decision maker for yourself for when you are unable to make decisions regarding your health and personal care may seem simple. You may assume that certain family members and loved ones should be chosen because of their connection to you. However, they may not be the best option, particularly if they won't care for you or ensure you are cared for the way you want. Or what if they don't have the time to visit, to oversee your affairs and ensure you don't become a victim of elder abuse? Or it may be that they simply won't be able to make the hard decisions when the time comes.

Sometimes the problem is having too many people to choose from. This may lead you to pick them to all work together or to make decisions either together or independently. A team (for example your children acting jointly) can be a good idea - they can bring their different skills and spread the work among them, ensuring someone is always there for you. But can they get along? What if the different members of your team have different ideas about what is best for you? If you allow your team members to make decisions independent of one another, this might result in conflicting directions, while requiring unanimity can lead to deadlock.

Unfortunately, sometimes the problem is having too few options. What if your friends are all your own age and your family are far away or gone? This can be a particularly difficult problem these days, as many trust companies will not accept a medical decision-making role. Even if a professional is available, the cost is beyond many people's means. A trusted advisor may accept the responsibility, but again the cost may be prohibitive, and a professional designation does not ensure a person will properly care for you. The Public Guardian and Trustee will oversee your care, but only as a last resort. Also, having strangers making personal decisions for you is less than ideal.

So what is the solution? One could argue that the Government should do more by hiring additional people to care for those who have no one to help them. However, in the current economic and political climate, it seems unlikely that extensive additional taxpayer funds will be spent this way, even if this was the ideal solution. In some jurisdictions, however, they have found an alternative. In several U.S. states, including Arizona and California, the state pays for public fiduciaries (similar to the role filled by the Ontario Public Guardian and Trustee) for those who have no one else. But in addition, the legislation in these states also allows for private fiduciaries. These individuals act as court-appointed guardians for medical and care decisions but are privately paid from the funds of those they make decisions for. Both types of fiduciaries are licensed and regulated by the state. In one U.S. article, the choice of such a career was touted for retirees. Maybe the time has come for Ontario to create a trained pool of people available to care for those who need this service.

No solution is perfect or even necessarily typical. Everyone needs to make the right choice for their own unique wishes and needs. For now, in Ontario, you may have to make the best of it, and seek professional assistance to help you pick the best people available for your situation, and give them the guidance they need to care for you when you need their help.

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. In particular, they are not intended to provide U.S. legal or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.

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