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Estate Planning: Choosing a Power of Attorney

In this day and age, not even landing on the moon can protect someone from apparent elder abuse.

Edwin E. (Buzz) Aldrin is suing two of his children and a former manager. The famous astronaut is accusing them of mismanaging his business affairs and of slandering him by claiming that 88-year-old Aldrin has dementia.

He wants a court judge to take control of his financial affairs and social media accounts away from his son Andrew. Aldrin claims that he revoked the power of attorney he gave Andrew, but that Andrew still makes financial decisions for him.

The Aldrin family dispute demonstrates how difficult it is to protect seniors' rights to make their own decisions. When should someone else assume control of a senior's assets? Who might that person be?

Powers of attorney and how they work

A Power of Attorney is a legal document that allows you to give a person you trust (the 'attorney') the right to make decisions for you if you can no longer make these decisions yourself. There are two types of Power of Attorney in Ontario:

  • Power of Attorney for Personal Care: makes decisions about health care, housing and your personal life, such as meals and clothing;
  • Power of Attorney for Property: make decisions about your financial affairs, including paying bills, maintaining or selling your house, and managing your investments.

If you don't have a power of attorney, and you become incapable, a family member or close friend may be appointed to act for you.

Mental capability

If you sign a power of attorney, you must be mentally capable. You must understand what you are doing and why. You need to know that someone else will have the power to make important legal and/or personal decisions on your behalf.

Choosing your attorney

Seniors often choose a family member to become their attorney, even when they don't fully trust them. They may do so because they think they must necessarily choose a family member. This is not true. Except for certain restrictions, you can choose whomever you trust to be your attorney.

Choosing an personal care attorney

Choose a person you trust to decide about your housing, food, health, safety, hygiene and clothing. Note that none of the following can become your attorney for personal care if they are already being paid to deliver services to you, such as:

  • A landlord
  • Your social worker, counsellor or teacher;
  • Your doctor, nurse, therapist or other health care provider; or
  • Your homemaker or attendant.

Choosing a property attorney

This attorney can start to make decisions immediately unless you state otherwise in the power of attorney document. You may want to limit your attorney's ability to make decisions to the time(s) when you are mentally incapable of making decisions.

Make sure that the person you choose understands what you want to do with your assets and property, and how to properly manage these, including keeping detailed records of any decisions and transactions made on your behalf.

Characteristics of a trustworthy attorney

A good attorney should be:

  • Trustworthy: Has the person always been honest with you? Have you known them long enough? Will they put your interests first?
  • Experienced: Can the person handle finances responsibly?
  • Willing: Has the person agreed to become your attorney, and have the time to do so?

Choosing someone to act as an attorney is one of the most important decisions that a senior can make - one that's best made with the guidance of an experienced estate law lawyer.

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