Note: For the purposes of this blog, I will use the terms “parent” and “child.” However, what I describe below is applicable to anyone who is named as Power of Attorney (POA) for any other person. This could be your parent, an aunt/uncle, a grandparent, a sibling, or a friend. I will also reference “mother” and “father,” but appreciate that this obviously can apply to same-sex relationships as well.
It’s never easy when a parent’s cognitive health starts to decline. At first, it may be subtle: you notice they’re a little bit more forgetful than usual, or maybe they just seem a little out of sorts when you go to visit them. Often, the early warning signs are things that can be easily pushed out of your mind.
Inevitably, things progress to a point where you can no longer look away — but by this point, it may be too late to meaningfully intervene. When I say “too late,” what I mean is that a parent has declined so far they are now mentally incapable and therefore unable to make advance decisions about their estate and medical care.
This includes retaining a lawyer to draft Continuing Powers of Attorney (CPOAs), a crucial step in Aging & End of Life Planning.
What is a Power of Attorney (POA)?
How about some definitions to get us started? The Ministry of the Attorney General defines POAs as follows:
- A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to make decisions for you even if you become mentally incapable.
- A Non-Continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period.
- A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care.
For more information about what Powers of Attorney are and how to draft them, take a look at this free guide from the Ministry of the Attorney General.
The importance of Powers of Attorney
Even if your older family members are currently of perfectly sound mind and body, you never know when that may change. That’s why it’s so important to ensure that everyone has their POAs in place while they’re still in good mental and physical health.
But even when your parents (or other older relatives) do have POAs in place, it can be difficult to know when and how that person should exercise their rights. This blog post will cover that scenario: what to do if you’ve been appointed POA by an older relative and you now feel you need to exercise your rights. Specifically, we’ll be talking about CPOAs and POAPCs as described above.
In a separate blog post, I’ll also be covering what to do if your parents did not have POAs drafted, and are now experiencing cognitive decline.
Exercising your rights as Power of Attorney
Let’s set the scene. Imagine your mother has passed away or is divorced from your father. Your father never remarried and does not live with anyone else. You are the oldest of 3 children.
Your father had a Continuing Power of Attorney for Property and Power of Attorney for Personal Care drafted 2 years ago. He appointed you as his POA in both instances, and your sister is the backup if you cannot act.
You live about an hour away from your dad and you see him once a month. He is 82 years old, healthy and vibrant, and living life to the fullest.
However, you are starting to notice him being forgetful. He snaps at you when you push him about his memory issues. He has stopped going out for walks and meeting up with friends for lawn bowling or bridge, both things that he used to do all the time. He mostly stays home and watches TV.
You know your dad. You know that this behaviour is not like him. You manage to convince him that he should go for a physical with his family doctor. Heartbreakingly, the doctor confirms that your father is in the early stages of dementia.
Time to bring out that trusty POA and get to work.
First order of business: banking.
Head with your dad to the home branch of his bank, along with a notarized copy of the POA for Property.
An important note: You don’t want to ever give the original copy of the POA to anyone. Someone may want to see it, and that’s fine, but never let them take it. (Be sure to ask the lawyer who drafted the POA to provide you with 5–10 notarized copies of the POA for Property once you realize it is time for you to exercise your rights under that document.)
The POA for Property should allow the bank to have your name put on your father’s account(s) and give you signing authority. Do the same thing for any investments, stocks, bonds, and so on. Meet with any banking or investment official who works with your father’s cash assets in any way and make sure it is known that you now have a POA, and will be providing direction on the accounts moving forward. Make sure that the POA is attached to all accounts that hold any of your father’s assets.
The specific decisions you make regarding your parent’s accounts are sure to vary from case to case. That said, here are a couple of things you will almost certainly want to do:
- Set up automatic payments of all bills for the home, rent, telephone, etc., so that your father never has to actively pay a bill again. If he still likes to go grocery shopping on his own (and you feel he can safely do so), then take cash out for him each week and leave it with him. There will come a time when that has to stop, but at least for now, you know where the money is going and are still allowing your father some freedom to live his life as he chooses — while you quietly observe and protect his assets from the sidelines.
- Keep track of EVERYTHING! Every single cent going into accounts and coming out should be tracked. This is a huge task, and a thankless one at that. Just remember that your father changed your diaper, stayed up with you when you had the stomach flu for nights on end, and taught you how to ride a bike and to throw that free throw shot from the foul line. He did a lot for you; now it’s your turn to do a lot for him.
What if I don’t exercise my rights as Power of Attorney?
While you are caring for your father, keep in mind that you have siblings and other future potential beneficiaries (under the Will) that have a right to know how you are handling your father’s finances. Even though your father is still alive, he is no longer able to care for his assets and property. That task has fallen to you.
It’s important that you take this responsibility seriously. If you did not properly care for the assets, then when your father passes away, other beneficiaries of his Will could demand a formal accounting of your father’s estate during the last years of his life — or worse, they could commence a lawsuit against you.
Always remember that transparency, openness, and complete honesty are best when dealing with all family members and potential beneficiaries when you are in the role of POA (that also applies to being in the role of guardian and/or Executor).
Using a Power of Attorney for Personal Care
As your father deteriorates, there will come a time when you will need to start using the POA for Personal Care. If your father needs in-home care, you can arrange that, or maybe he will need to move to a long-term care facility. All of that can be arranged using your POA for Personal Care and will be paid for by your father’s assets.
You will accompany him to all his doctor’s appointments, see that he takes his medications, etc. You will have to step up and be a part of every little decision about this life: what he eats, how he is bathed, what social activities he engages in, where he lives (as mentioned above), and much more.
Let’s not sugarcoat this: It will be exhausting and difficult. It’s going to be emotionally, mentally and physically exhausting.
Watching your father deteriorate to this state will be a very emotional process. He may get angry and may take that anger out on you. He may start to forget who you are and not let you help him. There are many services available to help you in this process and support groups for caregivers, such as yourself. Be sure to take care of yourself so that you can properly take care of your dad.
This is a tough process — but as hard as it is, consider yourself lucky that your father had the POAs drafted. For many, it can be an uphill climb just being able to help their parents because POAs were never drafted.
For more on that topic, take a look at our next blog post.