Care Needs Trumps $$

by Audrey Miller on September 4, 2014

in Articles & Blogs by Audrey, Power of Attorney

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Originally published at allaboutesstates.ca on September 4, 2014:

Further to my last week’s blog, ‘Care @ Home’ I wrote that the POA for Property/Finance should support the care needs of the incapable individual and the decisions made by the POA for Personal Care. I received a note from a reader who provided the following legal reference supporting this practice which I felt was important to share. (thank you Darrell).

The duties of guardians, and attorneys of incapable adults (as per section 38 of the Substitute Decisions Act), are set out under section 32 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30,:

Duties of guardian
32. (1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit. 1992, c. 30, s. 32 (1).

Personal comfort and well-being
(1.1) If the guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit.

Personal care

(1.2) A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions. 1996, c. 2, s. 20 (1).

Exception

(1.3) Subsection (1.2) does not apply in respect of a decision concerning the person’s personal care if the decision’s adverse consequences in respect of the person’s property significantly outweigh the decision’s benefits in respect of the person’s personal care.

Attorney under continuing power of attorney

38. (1) Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property.

While my legal colleagues deal with formal disputes on a daily basis, I too see many challenges in my work with families on the same issue. All too often, siblings are in disagreement about spending their parent’s money- on care for the parent. Remember- understand the care needs first so you can determine the costs and whether there are adequate funds available.

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