The Power Struggle in Powers of Attorney

by Audrey Miller on January 5, 2016

in Articles & Blogs by Audrey, Power of Attorney

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Many people believe that if something happens and they are unable to make decisions for themselves, their family can do so for them. This is not necessarily true. For financial decisions, legal authority is needed. You can give this authority by naming someone in a continuing power of attorney for property. For personal care decisions such as where you live or what care you will receive, you can give legal authority by naming someone in a power of attorney for personal care.
POA: Who’s on first?
The famous Abbott & Costello skit: Who’s on First, What’s on second and I don’t know is on third, is an apt way to describe the relationship often found between Powers of Attorney.  Care needs should dictate where monies should be spent.

So that you can be on first base, It is important to understand the duties of guardians, and attorneys of incapable adults as per section 38 of the Substitute Decisions Act (S.O. 1992, c. 30), that are set out under section 32 of the act. Here are some highlights.
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.

In Practice

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.
Let me preface this by adding the following disclaimer: when a parent assigns these duties to one of their children, it is because they trust in the other person’s judgment to do the right thing – to be able to act on their behalf- when they, the parent, can no longer make sound decisions for themselves.

There may be a number of reasons for the disagreements, especially when dealing with siblings who have their own familial history. Regardless of the reason for the dispute, often times the needs of the older incapable individual are ignored. The situation becomes magnified when one sibling is the attorney for personal care and another is the attorney for finance. This can become more complicated when there is a significant amount of money either needed for the care or if there is a significant amount of money or significant sibling conflict.

The person who matters most in this equation is the older individual and sometimes families forget this important reality. As I have stated previously, ‘the only normal families are the families you don’t know’. A fitting commentary for a topic that causes angst amongst the most seasoned practitioners. Family feuding, has historically been a common theme. Within the elder care world, I regularly work with families who are in conflict. Typically referrals from estate lawyers are as a result of conflicts between the powers of attorney; siblings who cannot agree on what mom or dad requires.

Over the years, I developed a tool called the Functional Living Assessment™ which is an assessment tool that puts aside family differences and focuses on what should be crux of the matter- mom’s or dad’s care needs. The end result is a comprehensive analysis that documents the areas of need and concern, quantifies what is required and makes recommendations based on the knowledge and expertise of an objective and experienced professional who understands aging, elder care needs and community resources.

Rather than being caught up in the rehashing of long lost promises and childhood hurts, this is an extremely valuable tool that refocuses the attention on to the older individual and their needs. While we continue to strive to put family members on the same page for a plan of care for mom or dad, we can all agree that sometimes families lose sight of this important issue. Understanding and quantifying the care needs of the older individual, assists not only the older person but provides guidance for the POA’s. The information helps them to refocus on what their parent needs so that realistic plans can be developed taking into consideration their care needs, costs and choice.

-Audrey Miller MSW, RSW, CCLCP: Originally published in Solutions Magazine 2014

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