Windsor Parkinson Meeting January 24, 2012

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Parkinson Society Southwestern Ontario.png Parkinson SW rgb EN.jpg

Parkinson home.jpg . . Welcomes Guest Speaker : Mr Barton Seguin a lawyer

will be presenting "Powers of Attorney for both Personal Care and Property"

POWERS OF ATTORNEY IN ESTATE PLANNING

Barton J. Seguin, B.A. (Hons.) M.B.A., LL.B.
Shibley Righton LLP


COMPONENTS OF A COMPREHENSIVE ESTATE PLAN

  • Last Will and Testament
  • Continuing Power of Attorney for property
  • Power of Attorney for Personal Care
  • Life Insurance
  • lnter-Vivos Trusts
Left to Right
Barton J. Seguin, B.A. (Hons.) M.B.A., LL.B.
and Pat St. Pierre, MSW, RSW

GENERAL PRINCIPLES

  • A means of delegating authority
  • Can extend to financial affairs and personal matters
  • May be comprehensive or restricted to a limited scope


LEGAL REGIME

1. COMMON LAW

  • Law of agency
  • Fiduciary obligations
  • Conflicts of interest

2. STATUTE

  • Substitute Decisions Act, 1992 (the "SDA")
  • Powers of Attorney Act


THE PARTIES

  • GRANTOR - the person making the POA
  • ATTORNEY - a person named in a POA as having decision-making authority for the Grantor


LIMITATIONS ON THE ABILITY TO DELEGATE

  • A Judge cannot delegate his or her judicial function under a POA
  • An estate trustee cannot delegate his or her responsibilities by way of a POA (but may under his or her will in certain circumstances)
  • An attorney cannot make or amend a Will for the Grantor (subsection 7(2) of the SDA)


CRITERIA FOR A VALID POA

THE GRANTOR MUST:

  • Be at least 18 years old if making a POA for property or 16 years old if making a POA for personal care;
  • Have the requisite capacity under the SDA; and
  • Sign the POA in the prescribed manner.


CAPACITY FOR A POA FOR PROPERTY

The test is set out at section 4 of the SDA. Generally, the Grantor must be able to show that he or she:

  • knows what kind of property he or she has and its approximate value;
  • is aware of obligations owed to his or her dependents;
  • knows that the Attorney will be able to do on the person's behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the POA;
  • knows that the Attorney must account for his or her dealings with the person's property;
  • knows that he or she may, if capable, revoke the POA (provided the Grantor has capacity);
  • appreciates that unless the Attorney manages the property prudently, its value may decline; and
  • appreciates the possibility that the Attorney could misuse the authority given to him or her.


CAPACITY FOR A POA FOR PERSONAL CARE

Different from the test applicable to the POA for property, the test is set out at section 43 of the SDA. Generally, the Grantor must:

  • have the ability to understand whether the proposed Attorney has a genuine concern for the person's welfare; and
  • appreciate that the person may need to have the proposed Attorney make decisions for the person
    • Note - under the SDA, a person may be incapable of managing property and incapable of making decisions as to his or her own personal care and yet be capable of giving a POA.


OPTIONS IF THE GRANTOR DOES NOT HAVE CAPACITY

  • Guardianship
  • Voluntary application to the court with a request to be appointed the person's legal guardian for the person and property
  • The office of the Public Guardian and Trustee ("PG & T") may be appointed as the person's statutory guardian as an option of last resort


FORM REQUIREMENTS

  • No particular form or document
  • The POA for Property must expressly state that the authority is to remain effective after the Grantor becomes incapable of managing property.
  • A POA for personal care can only be used when the Grantor is incapable of making personal decisions.
  • Must be signed by the Grantor in the presence of two witnesses, each of who must sign the POA as witnesses


WITNESSES

Certain persons are disqualified as witnesses:

  • the Attorney or the Attorney's spouse or partner;
  • the Grantor's spouse or partner;
  • a child of the Grantor or a person whom the Grantor has demonstrated a settled intention to treat as his or her child;
  • a person whose property is under guardianship or who has a guardian of the person; and
  • a person under 18 years of age


CONDITIONS AND RESTRICTIONS

  • Limited to certain period of time (only when out of the country)
  • Limited to certain property (only a residence or certain shares in a company)
  • Limited to certain decisions (health care but not accommodations)
  • only to take effect upon the happening of a certain event (when the Attorney reaches a certain age)
  • only to take effect upon incapacity of the Grantor (applicable to POA for property only) as it may be determined under the POA or the SDA


APPOINTING THE ATTORNEYS

  • Can be a single individual or several
  • lf more than one, the appointment can be made joint or joint and several
  • May look to professional trustees for assistance in property matters
  • The attorney named in a POA for property does not have to be the same person named in the POA for personal care
  • Key considerations are the trustworthiness and integrity of the candidate, his or ability to assume the responsibilities of the position and other practical considerations


STANDARD OF CARE

  • to act diligently, with honesty and integrity, and in good faith;
  • to seek to foster regular personal contact between the incapable person and supportive family members and friends;
  • to consult from time to time with supportive family and friends of the incapable person, and with those who provide personal care to the person;
  • to fully account for acts taken under the authority of the POA


TERMINATION

  • By revocation of the appointment by the Grantor
  • By application to the court for the appointment of a guardian
  • Death of the Grantor
  • Death, incapacity or resignation of the Attorney when there is no substitute or alternate named in the POA who are willing to act in the place and stead of the first named Attorney


MENTALLY INCAPABTE OF MANAGING PROPERTY

  • This term applies to a person who is unable to understand information that is relevant to making a decision or is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his or her property.
  • Processes for certifying an individual as being mentally incapable of managing property are prescribed in the SDA and in the Mental Health Act.


ASSETS IN OTHER JURISDICTIONS

  • A POA made in accordance with the laws of Ontario may not be recognized as valid in other jurisdictions
  • lf the Grantor has property in multiple jurisdictions, it may be prudent for the Grantor to seek the advice of a lawyer in that jurisdiction


THE "LIVING WILL" PROVISIONS

  • The "Living Will" - the ability to set out specific instructions within the document about medical treatments that are to be given or withheld
  • Sample instructions:
    • - To refuse all blood transfusions (Jehovah's Witness)
    • - To refuse CPR
    • - To refuse tube feeding


LIMITATIONS ON A POA FOR PERSONAL CARE

An Attorney for personal care cannot:

  • consent to the use of electric shock for control purposes unless it is treatment, and consent is given under the rules in the Health Care Consent Act;
  • consent to the incapable person being confined, subjected to monitoring devices, or restrained physically or by means of drugs unless the practice is essential to prevent bodily harm to the person or to others, or allows the person greater freedom or enjoyment.


BARTON J. SEGUIN
SHIBLEY RIGHTON LLP
2510 Ouellette Avenue, Suite 301
Windsor, Ontario N8X 1L4
Tel: (519) 969-9844
Fax: (519) 969-8045
Email Address: barton.seguin@shibleyrighton.com
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Windsor Parkinson’s Support Group



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