Problems with Powers

1. Problems with Powers June 11 2010 The Elder Abuse Symposium

2. Situation One • If you do not have a power of attorney for personal care: • Health care practitioners find relatives to sign consents • Close friends apply to the Consent and Capacity Board

3. Situation Two • If you do not have a power of attorney for property • Relatives will apply to court or OPGT • Friends apply to court • OPGT will be appointed for a person in a psychiatric facility • Capacity assessor can recommend the OPGT

4. Solution • The Office of the Public Guardian and Trustee has Power of Attorney forms for personal care and property that will enable the named person to act and prevent the OPGT from acting in most circumstances. • http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf

5. Situation Three You are travelling in Europe with a friend and you have an accident. Health decisions have to be made and money transferred. What do you do?

6. Solution • Take your powers of attorney documents with you when you travel. • You can have several notarized copies. • If you regularly travel somewhere, have your documents checked by local lawyer and have a local attorney. • You can have documents made up for specific time and purpose.

7. Situation Four • You have your child on a joint account which is used to pay your bills etc. • Similarly you have your child on a joint ownership of your house. • You are happy with this arrangement since you intend to give that account to that child anyway.

8. Solution • Get a power of attorney for property and a will done.

9. Situation Five • You have accounts in different banks and have a power of attorney in each one, perhaps with different persons.

10. Solution • Make sure that your powers of attorney do not overlap and make sure that you revoke ones you do not want and keep the ones you want. • Make your documents clear and specific • Check with your lawyer

11. Four kinds of powers • Limited power of attorney • Continuing power of attorney for property • Continuing power of attorney for personal care. • Banking power of attorney

12. Practical Considerations • Power of attorney should be aware of your wishes and values and be trustworthy • Power of attorney should be fairly healthy • Power of attorney should be nearby • Power of attorney should discuss an alternate and have the power to appoint and delegate

13. Anna Nicole Smith Anna was born in 1967. In 1994 when she was 26 while working in a strip club she J. met and married J. Marshall who was 89 and was also one of the richest men in the world. He died in 1995. Marshall’s son Pierce contested Anna’s claim to the estate. Anna died in 2007. This marital situation is not uncommon at all. What did Mr. Marshall want?

14. Banton v. Banton, 1998 CanLII 14926 (ON SC) • Mr. Banton had been certified as incompetent to manage his estate under the Mental Health Act. He married a waitress in his retirement home and was later assessed to be incapable of managing property but capable of giving a power of attorney for property to, for example, his wife. In the meantime his sons used their power of attorney to transfer their father’s term deposits to an irrevocable trust. The income and capital would be applicable at the trustees’ discretion for George’s benefit during his lifetime. On his death, the capital and any accumulated income remaining would be distributable among his children. After Mr. Banton died, the waitress successfully reversed the trust • The judge sympathized with the sons but reversed the trust. The sons were not acting completely for their father’s benefit but also to prevent the wife from benefiting and to secure the estate for themselves. This was even though there was some criticism of the wife’s actions regarding a new will.

15. McMullen v. Webber et al, 2006 BCSC 1656 (CanLII) • Mr.Mullen’s wife died in 2002, when he was 82, after 60 years of marriage. That same year he went to Hawaii and met a lady. His two daughters became concerned about his spending and used their powers of attorney to transfer his condominium to their husbands’ name and left the father with a 1% interest. The father found about the transfer when he looked for refinancing. He brought an action against his daughters to have the transfer reversed and was successful. • This B.C judge sympathized with the daughters. Yet he held that their actions were in breach of the use of the powers of attorney.

16. OPTIONSIf you are the power of attorney • Mediation: you are responsible for funds while acting as power of attorney. • Bank: add yourself as joint signatories • Discuss: you can say that you are very worried. • You may have to step aside. • You may have to order an assessment.

17. Options If you are the elder • Mediation informal • Have a triggering event in your documents • Have your accounts disclosed to a third party • Consider the concerns of your children • Consider the concerns of the new relationship • Do up a will and new power of attorney • The will can be registered

18. Options If you are the girl-friend • Have the house designated as matrimonial home upon marriage. • Domestic contract or marriage ceremony. • Joint tenancy. • Power of attorney and will.