Nancy’s* mother told her that she was recently diagnosed with a mild form of dementia. She said “I’m fine, it’s nothing; it just means I forget where I put my keys”. But as nothing turned to something, Nancy started to worry that her mother’s safety was at risk. Would she leave the stove on unattended? Or give her financial information to strangers? Would she wander in the cold without enough layers? Or forget to pay her bills and have her heat shut off?
Nancy’s concerns are very real.
Nancy can start off by taking non-legal steps, such as driving mom to appointments, helping with grocery shopping or moving dangerous objects so they are out of reach. But eventually Nancy might find there are legal barriers to assisting fully and protecting her mother from harm.
Nancy will need to know whether her mother ever executed powers of attorney (POA), if they are even valid, and on what conditions they come into effect. Nancy could face legal consequences if she acts on a POA and it is not valid or not yet in effect. Nancy could also face legal consequences if she is not the person her mother appointed and she acts without the legal authority to do so.
Nancy is not necessarily the decision-maker simply by virtue of being her mother’s child. Perhaps her mother did not want to burden her. Perhaps Nancy’s brother was appointed instead because he is better with finances, lives closer to mom or has less responsibility in his life. Or perhaps they were jointly appointed.
If there is no POA, her mother might wish to make one at this time. Nancy must be careful to ensure she does not unduly influence her mother to make a POA nor influence its contents. It is possible that Nancy’s mother does not have the mental capacity to make the POA. The POA lawyer may suggest Nancy’s mother first have her capacity assessed.
If there is no POA and her mother does not wish to make one or is legally incapable of doing so, Nancy may need to investigate whether she should apply to become her mother’s legal guardian. She will want to contact a guardianship lawyer as this is a long and complicated process that can involve going to court.
If Nancy is ultimately entitled (or granted the right) to make decisions under a POA or guardianship order, Nancy will need to learn more about her legal duties. For example, there are specific laws that dictate how she must make certain decisions and keep records of those decisions. There is also a law requiring Nancy to explain to her mom what her powers and duties are. Acting with good intentions is not enough – Nancy could be liable for thousands of dollars if she makes a misstep: she could be sued years later by people who would have benefitted under her mother’s Will, she could have to defend a proceeding brought by another person who wants to control mom’s finances or have a say in treatment decisions; or she could be on the hook financially if the money is mismanaged.
In addition to the law, Nancy may find it helpful to learn more about the disease and join a caregiver support group in order to develop strategies that make the day-to-day tasks easier to manage.
In Ontario we are fortunate: the law provides a system (albeit far from perfect) to protect people who are incapable of making certain decisions for themselves. It allows family caregivers like Nancy to assist with or even perform decision-making, with the Public Guardian and Trusteeas the decision-maker of last resort. However, individuals who step in cannot merely do as they please, even if they think their actions are in the best interests of their loved one. They must act diligently, in good faith and within their legal authority at all times.
*Not a real person.
Please contact Lisa Feldstein Law Office if you have questions about powers of attorney, guardianship applications, guardianship disputes, family fights involving power of attorney, elder law, or other matters involving consent and capacity.
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