Limited Power of Attorney - Hull on Estates and Succession Planning #193
Listen to: Limited Power of Attorney - Hull on Estates and Succession Planning #193
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the issues with having a limited Power of Attorney or no Power of Attorney at all.
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Ian M. Hull - Click here for more information on Ian Hull.
Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.
Limited Power of Attorney -
Welcome to
Suzana Popovic-Montag: Hi and welcome to
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hi there Ian.
Ian Hull: So welcome.
Suzana Popovic-Montag: Thank you.
Ian Hull: And now that we’re back full speed, we want to dive right into our topic today.
Suzana Popovic-Montag: Yes.
Ian Hull: We want to take no prisoners because we’ve got lots we want to talk about and some of the interesting developments as well in the social media world that, if we have time at the end, we’ll discuss as well.
But let’s turn away from, we talked about getting paid in guardianship when we last were talking about legal-based podcasting and now let’s talk a little bit about the guardianship process more generally.
Suzana Popovic-Montag: And when we talk about the guardianship process, Ian, we’re talking about the situation where someone doesn’t have a Power of Attorney or they have a Power of Attorney that’s only for limited purposes or for limited assets. And so in this case, you need the assistance of a Court to give you the authority to deal with someone’s assets, if they haven’t provided for that while they were capable themselves.
Ian Hull: For sure. And that whole question of what do you do if there is no Power of Attorney, is dealt with cross the
So let’s break it down now. We’re dealing with guardianships of property at the outset, that’s a good starting point. The first step along the way is what, when we’re going to go to the Court and get appointed as guardian for property?
Suzana Popovic-Montag: Well basically we’re talking about a Court proceeding and so we’re going to need a Notice of Application that seeks that appointment. We’re going to need the proposed guardian’s Affidavit in support of that Application and as part and parcel of that, a Management Plan that sets out how it is that the proposed guardian wants to or will deal with the incapable person’s assets.
Ian Hull: And the key component of all the documents before the Court is, of course, the finding of incapacity. The doctor’s certificate certifying that the individual is incapable.
Suzana Popovic-Montag: And I think we can’t underestimate the importance of that finding because the first thing that in our experience a judge will look for is that statement in the Affidavit that says doctor so and so has found this person to be incapable of managing property. And that is really the crucial point for any kind of Application where you’re trying to get control over someone else’s assets.
Ian Hull: Alright, so when we deal with, and we’ve talked about in previous podcasts, so I don’t want to get into too much detail on this podcast anyway, on the duties and roles of a guardian for property because we’ve kind of hashed those out over the time. But let’s focus on the guardianship of personal care. And first of all, again similar materials, of course, are filed. You need a Management Plan for the guardianship for property. Guardianship Plan is for guardianship for personal care. You need to tell the Court how you intend to behave and you need to have a finding of incapacity. Again, the doctor’s finding of incapacity. So with those in mind, the similarities are obvious in that sense. What are some of the goals or duties or roles of the Power of Attorney for Personal Care now?
Suzana Popovic-Montag: Well when it comes to personal care, it’s really broken down into a number of different categories. And so you can have a finding on someone being incapable of all the categories, on some of them or most of them. And it can really be quite flexible. And when I talk about categories, I’m talking about things like health care, like nutrition, like shelter, like clothing, being capable of taking care of one’s hygiene and safety. And those are the kinds of big headings that we’re going to look at when we’re looking at a Guardianship Plan and how someone proposes to deal with someone on each of those bases.
Ian Hull: Alright and again, sort of keeping in the back of the mind, of course, the Court’s ongoing obligation for ensuring that everything that is done is done in the best interests of the incapable.
Suzana Popovic-Montag: And our legislation certainly here in
Ian Hull: Well and that consistency is so very important when we’re dealing with the personal care decisions and ideas such as you can get into some unnecessary tension when you have to, for example, picking caregivers. And that tension can be alleviated substantially if you have good co-operation and co-ordination but also good communication.
Suzana Popovic-Montag: And you know I think we talked on the previous podcast about the importance of documenting the work that you do. And we said previously also that you know when you’re dealing with someone in a rush or a crisis situation, sometimes keeping notes of what it is that you’re doing just is the last thing from your mind. And I’d say it’s maybe even differently but maybe more so in this situation, when you’re dealing with someone’s well-being, their personal care. Those decisions have to sometimes be made quickly; they have to be made without the benefit of being able to do a whole bunch of thinking in advance as it maybe just a reactionary kind of decision. And to be able to document that is something that we do try to tell people to keep in mind because at the end of the day, you’re going to have to explain it to someone possibly and you want to be able to remember, to reconstruct why it was that you did what you did at that time.
Ian Hull: For sure. You know keeping copies of all relevant documentation that you make, that others make, doctors’ notes, doctors’ reports, anything like that, keeping handy the Power of Attorney documents. I had a client yesterday call and say they’re quite healthy but they said we’ve been looking through our files and we can’t find our Power of Attorney. And so, you know, those are important documents to maintain. But if they were incapable, it could be a really difficult scenario. So…
Suzana Popovic-Montag: Yeah, for sure.
Ian Hull: …you’re right, record-keeping and keeping all of the significant decision-making documents that identify the decisions and why and how is vital.
Alright, one of the things too, when you take on the role of guardian of personal care and property is the same sort of circumstances in some respects, is of course access to those documents. So if you don’t have them in hand, is it worth getting it in hand? Because we talked about in a previous podcast the right of a Power of Attorney for Property to go and look at the Will to make sure that he or she isn’t conducting the business affairs of the individual in complete absence of the Will provisions. And I think it’s very important as well for personal care that they go out and seek out the medical records to the extent that they’re relevant and necessary to help you better understand what personal care decisions you need to make. If you don’t know the nature of the illness or the kinds of symptoms that the individual is suffering from and you could glean them from looking at medical reports and so forth, the records of some relatively consistent period of time that is fairly current, it can go a long way to assisting you. It’s a bit of an intrusion into the person’s life but the point is that you’re here to help. And if you’re here to help, access to that medical information can be vital.
Suzana Popovic-Montag: And just from a planning perspective too, I know many times when people will create their Wills and they create their Powers of Attorney at the same time, to have documents and know where those documents are. And so maybe we don’t have a Power of Attorney, for instance, here but we might have some direction, some note that says if and when something were to happen, this is something that’s important to me. So having that in the right hands or even telling people where to look for it at the end of the day is something that, to the extent we can try to get people to think about in advance, I think is very helpful.
Ian Hull: Terrific. Alright, well let’s continue this discussion on but we’re at our treadmill time. So we want to thank everyone and welcome everyone back to our regular podcast from our brief reprieve that we discussed at our last podcast. And thank you very much for today.
Suzana Popovic-Montag: Thanks Ian.
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