Powers of Attorney and Elder Abuse Hull on Estate and Succession Planning Podcast #64

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1 Powers of Attorney and Elder Abuse Hull on Estate and Succession Planning Podcast #64 Posted on June 12 th, 2007 Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You are listening to Episode #64 of our podcast on Tuesday, June 12 th, Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada, from the offices of Hull Estate Mediation in Toronto, Ontario, Canada. Here are Ian and Suzana. Ian Hull: Hi Suzana. Suzana Popovic-Montag: Hi there Ian. Ian Hull: I was thinking we might want to carry on with our discussion on Powers of Attorney. It s an issue that continues to plague our profession and also enhance our profession. And people every day are having to deal with the topic. It was a real pleasure for me to be a guest on Strictly Legal, Michael Cochrane s show on BNN, formerly the Report on Business TV. And Bob Aaron was the host. And I m sorry to say that Mike Cochrane s mother had passed away and so he wasn t able to come and do the show. And he asked Bob Aaron to host it and Bob asked me to be his guest. And we did the show. And one of the big topics that Bob raised was this whole question of Powers of Attorney, and how they are being used out there by the public and abused by the public. Suzana Popovic-Montag: I always find it remarkable, Ian, the fact that they are so well used, on every level. And yet people, in my experience anyways, they haven t had the opportunity to speak with a lawyer about the significance or the importance or the effect of a Power of Attorney the way people do normally on death, when there s a Will, and people just don t know what to do. With a Power of Attorney, there s just a presumption that you can just, you know, walk with authority with it, and march on. And I find that it s a real disservice to people to think that they don t need to really know and understand the significance of these documents before they start using them. Ian Hull: You know, really from my perspective, I see the standard way that someone s getting a Power of Attorney here in Ontario, is that the client comes in, does Wills and then the lawyer will say, well do you want to do a Power of Attorney? And of course, in most situations, it makes sense and they re done. But at that point, the person is appointing someone who is not in the room, to be the attorney, obviously. Someone like, well sometimes they re appointing their wives and their husbands and they re together. But say you re appointing your brother to be your attorney. And, like you say, the brother has no idea what he s getting himself into. But when the day comes that he has to act on the Power of Attorney (the brother), he just gets handed this document. And not even to the lawyer s disservice, the truth is, is that they just go on and act on it as best as

2 2 they can. And I would have thought that it might go a long way to solving some of the problems we see on a day-to-day basis with the Powers of Attorney fights, is that maybe when you create the document, you tell your attorney that they are the Power of Attorney and maybe you take some steps to see if that person can get educated on what s going to be involved. I mean you don t hand a company over to someone without training them. Suzana Popovic-Montag: That s right. Ian Hull: So, I ve always wondered why there s no, sort of, Power of Attorney training. Suzana Popovic-Montag: Or at least some form of, you know, even a one page kind of checklist, telling people that, you know, here s what a Power of Attorney means, here s what its effect is, and here s what your responsibilities associated with that position as attorney really are. Ian Hull: So what I thought we could do then, given our perplexing problem we see about Powers of Attorney, is keep talking about some of the issues that we see on a dayto-day basis on the contentious side. And I think probably the most contentious part of a Power of Attorney; problems get created with respect to the choice of attorney. And that s obviously where one child maybe, or some, one individual within the family, feels slighted for not having been picked over another. But before we talk about that scenario, let s talk about the situation where you have dueling Powers of Attorney. Suzana Popovic-Montag: And what exactly, Ian, do you mean by dueling Powers of Attorney? Ian Hull: Well, dueling Powers of Attorney, as I m sort of describing it in this case, is a situation where an elderly person has an existing Power of Attorney. And say, she s appointed her daughter as the attorney. And then for whatever reasons, she changes it, and appoints her son. What can happen, in certain circumstances, is that the daughter can be miffed and want to take some legal steps to fight that new appointment, if the son starts acting on the Power of Attorney. And so you have essentially the battle between the two attorneys. It s crudely described as a fight over the body before someone s dead, because you re essentially tugging at parents, the two children in my example, are tugging at the parents and their rights to get at access to their money and so forth. Suzana Popovic-Montag: And I guess that s somewhat in contrast to what I would have thought you had meant by that concept, which is that you had more than one Power of Attorney document that appointed, you know, in each document, a different person. So that we know certainly that Powers of Attorney can be created for limited purposes or for specific purposes or for periods of time. So I thought perhaps that that was the context you were referring to. Ian Hull: Well, we can talk about both. Let s talk about my context first, and then we ll talk about yours. So what can happen is, as I say, a change of heart. And it comes back to this estate planning at 5 minutes to 12 before your capacity becomes an issue. And

3 3 you, I guess, the message in this regard, is really that people have to be very careful about changing their Powers of Attorney in moments of what is either frailty, mental frailty for them, or potentially mental frailty perceived to be mental frailty. One child may think that there s not a chance he s capable of looking after his affairs and the other child may think that they are. And then you get into situations where it can be very contentious litigation. Suzana Popovic-Montag: And I think that s an important thing to point out to people because it does happen, it happens a lot. And in some situations where judges are completely reluctant to even deal with the issue, you may end up setting aside both Powers of Attorney and having someone actually appointed as guardian, who may be neither of those two people that had actually been appointed as attorney. Ian Hull: And that s a great point. In Ontario, I think more than 5 years now, there s a great case that came out of the Ontario Court of Appeal, where exactly this scenario happened. And the two children were dueling over who should be the proper attorney, both of which spent thousands of dollars telling the court how great each of them were. And then the court turned around and they probably both were excellent choices. And the court turned around and appointed the Public Guardian and Trustee, the government authority, for someone under disability in Ontario. And that s truly not a result that anyone probably saw coming, but the court felt it had no other choice. Suzana Popovic-Montag: And that s because so many times in these situations, you are looking at two very good people, two good candidates, so to speak. And it s going to be very hard to choose between the two. Ian Hull: So you can think about ways to solve this is create mechanisms either to appoint both and/or more, depending on how many children you have, and create situations as you re suggesting. And that is, creating Powers of Attorney for limited purposes. And maybe have one attorney in charge of finances in respect of Canadian assets. And then one attorney in charge of finances with respect to U.S. properties or something like that. Giving both people responsibility, but at the same time, you know, reflecting maybe the physical reality if one of them lives in the U.S. and they can deal with things easier, or something like that. Suzana Popovic-Montag: And we see many cases too where the attorneyships can be split up between Powers of Attorney for Property and Personal Care. So if there are two children, for instance, and one is more business-minded, the parent might choose that individual to be the attorney for property. And the other perhaps as attorney for personal care, to make those decisions that you can t make when you re incapable yourself. Ian Hull: That s an excellent point and one that really can help balance the emotional and financial tensions when you re creating Power of Attorney documents. Alright, so from our perspective anyway, the choice of Power of Attorney and the battles that can ensue are a big part of the litigation process unfortunately. What also comes out of this system is what I think is a useful discussion, and that is, sort of, talking a little bit about the

4 4 process. But before we talk about that, maybe comment first about what is now, sort of, an accepted term and accepted phrase in the media, and that is, elder abuse. What I mean by that is, is that we have to - I certainly encourage my clients to be alert and aware of situations like elder abuse, so that they can step in. And one of the things that people don t know or often don t remember is, is that the Office of the Public Guardian and Trustee and every other provincial office that looks after those adults under disability, have what I affectionately call the rat line. You can, if you know of or see of, maybe a neighbour who you feel is - maybe you don t know that much about the circumstances but you are worried about how they re being treated by maybe a care giver or something, because there s some signs that you ve noticed when you go over to visit for tea or something. But where there are signs of abuse, I just, I think that it s an important issue in today s society and I encourage my clients to think about, you know, calling the police or calling an investigation in through the Public Guardian and Trustee s Office. They have a whole investigation wing that will step in and deal with situations like this, and investigate whether or not there truly are abusive situations. Like, for example, as I say, the PGT, the Public Guardian and Trustee s Office, they have a number; I think its , which is a great service to put yourself at ease, if you are noticing it. Suzana Popovic-Montag: Do those conversations take place, Ian, on a confidential basis? Or are you required to, sort of, identify yourself? Ian Hull: No, they re typically pretty anonymous process. So that s, they re like, akin to when you get in situations with Canada Revenue and you make complaints. Suzana Popovic-Montag: Well that s good, because it allows people to know that they can do a public service or do good for goodness sakes without necessarily facing repercussions from, you know, these individuals who might be actually abusing our elderly. Ian Hull: So, on that note, I thought what we ll do is, at our next podcast, just spend a few minutes talking about the process. Not to belabour the litigation process, but to just sort of remind people what might be involved in their estate, while you re alive, if you don t get yourself organized with a Power of Attorney. Suzana Popovic-Montag: Thanks very much, Ian. I look forward to our next podcast. You ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances. To listen to other Hull On podcasts, or to leave a question or comment, please visit our website at Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

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