Incapacity and the Authority to Act

Leave a LegacyApril 2014

Shelley E. Waite TEP

Partner, Wills & Estates

About UsMcLeod & Company LLP is a dynamic mid-sized law firm with offices in Calgary’s south and downtown. Over the past 30 years we have grown to more than 45 lawyers with diverse practices and community ties. We continue to be the largest non-downtown based law firm in the City with a long-standing commitment to excellence, integrity and results.

We have one of the largest Wills & Estates Departments in Alberta with seven lawyers, including two partners, counsel and four associates. We provide full wills and estates services including, estate and trust planning, estate administration, estate disputes, cross border and international matters, incapacity and elder law issues.

Our team is experienced and committed to providing you with excellent service based on solid foundations and the most recent developments in the law.

Basic Concepts

Everyone has the right to self autonomy • Autonomy must be preserved to ensure least intrusive

and least restrictive forms of assistance

Everyone can make their own decisions• Capacity is presumed until the contrary is demonstrated

These basic concepts apply to elder people too

How to Assign Decision Making Power• Power of Attorney• Personal Directive• Guardianship• Trusteeship• Co-decision maker• Supported decision making• Joint assets

You Get to Decide

Powers of Attorney • Powers of Attorney Act

Personal Directives• Personal Directives Act

You Get to Decide

Power of Attorney and Personal Directive

• Personal documents completed before you loose the capacity to decide

• You decide who to appoint as your decision makers• Can be revoked by you the maker but only if you have

the capacity to understand what this means • Easy to do and inexpensive

Incapacity

Enduring Power of Attorney “EPA”• Deals with the finances and property of the “estate” of

the incapacitated person• Who – your “attorney” versus you the “donor”• When - does it come into effect• How - does it come into effect • What - can my attorney do• Where – will it be recognized outside of Alberta• Why

Incapacity

EPA – Who• Attorney

• Anyone you trust• Canadian resident preferred• Can be more than one person• Does not have to be family• Must be older than 18 years of age• Can appoint joint attorney and / or alternates

Incapacity

EPA – When is it in effect• Enduring – continues past incapacity• Springing – upon incapacity• Immediate – as soon as it is signed• Declaration in writing• Combination of any of the above

Incapacity

EPA – How does it come into effect• Two doctors in Alberta

• Springing - Two doctors have to sign a written declaration declaring the donor to be incapable

• Enduring - Continues in effect after incapacity has been established

Incapacity

EPA – what can my attorney do?• Sell land• Spend my money on me, my spouse and children• Invest my money prudently “prudent investors rule”• Income taxes and other filings• Reporting requirements• Dispose of my personal belongings if necessary• Continue gifts to charities

Incapacity

EPA – Where can they act• Depends• Alberta law recognizes EPA’s from other jurisdictions if

they have met with the legal formality of that jurisdiction - REALLY

• Get legal advice before buying the BC cabin

Incapacity

EPA – Why• Because it is harder to take care of an incapacitated

person versus someone who is dead• You draft the who–what-when–where–why. Document is

tailored to fit your situation.• Trusteeship application

• $$$$$$$$• Onerous• Involves the Court• Renewal requirement• Public documents• Accounting requirement

Incapacity

Personal Directive “PD”• Deals with the personal decisions of the incapacitated

person• Who – your “agent”• When - does it come into effect• How - does it come into effect • What - can my agent do• Where – will it be recognized outside of Alberta• Why

Incapacity

PD – Who• Agent

• Anyone you trust• Canadian residency not important

• Location may be a factor

• Can be more than one person and can name alternates• Does not have to be family• Must be older than 18 years of age when acting• Does not have to be your “attorney”

Incapacity

PD – When is it in effect

• Only on incapacity (Springing)

Incapacity

PD – How does it come into effect• Agent + doctor/psychologist sign a written declaration

declaring the donor to be incapable

or

• Two service providers one of whom must be a doctor or psychologist sign a written declaration declaring the donor to be incapable

Incapacity

PD – legislated forms• The Personal Directives Act now has forms for the

doctor/psychologist and service provider to fill out • A PD is NOT in effect until incapacity is established

Incapacity

PD – What can my agent do?• Health decisions• Where I will live• Who I might live with• What activities I can do• Legal matters not pertaining to my monetary estate• End of life decisions

Incapacity

PD – Where can they act• Law is silent on jurisdiction- Alberta will recognize

similar documents from other jurisdictions• May be subject to the laws of that jurisdiction

Incapacity

PD – Why• Because it is harder to take care of an incapacitated

person versus someone who is dead• You decide the who-what-when-where–why and not your

agent. Can be tailored to fit your situation. • Biggest impact – end of life decisions and type of care • Guardianship application

o $$$$$$$$o Onerouso Involves the Courto Renewal requiremento Public documents

Incapacity

What about “Living Wills”

• This is NOT a legal document and therefore has no force or effect in law

Incapacity

Do your own Personal Directive

Go to:

http://www.seniors.gov.ab.ca/opg/PersonalDirectives/

You Don’t Get to Decide

Adult Guardianship and Trusteeship Act

has replaced the:

Dependent Adults Act

You Don’t Get to Decide

Adult Guardianship and Trusteeship Act• Now a continuum of decision making choices

o Supported decision making; if not this then,o Co-decision making; and if not this then you have lost

capacity and will need a:o Guardianship and/ or Trusteeship

You Don’t Get to Decide

Trusteeship application• $$$$$$$$• Onerous• Involves the Court/Office of the Public Trustee• Renewal requirement (perhaps)• Public documents• Accounting requirement• Personal reference check• Criminal records check• Possible Credit check

You Don’t Get to Decide

Guardianship application• $$$$$$$$• Onerous• Involves the Court/Office of the Public Trustee• Renewal requirement (perhaps)• Public documents• Accounting requirement• Personal reference check• Criminal records check• Possible Credit check

You Get to Decide

Supported Decision making• No significant cost• Does not involves the Court• Contract between donor and support decision maker• Only personal decisions not financial• Language or communication difficulties

Co-Decision making• Court process• Need capacity report• There is significant impairment• Child who is turning 18 and needs help to make good

decisions

Other Property

Joint Tenancy and Jointly Held Assets • your home • your bank accounts• The “right of survivorship”

o New LAW!• Careful if you have joint account with someone other then

your partner!

Joint Tenancy versus Tenants in Common

Incapacity

Do’s and Don’t for Attorney and Agent and Trustees and Guardians• must act in your “best interest”• If unclear as to what “best interest” includes, they should be

seeking legal advice or Court advice• may be held personally liable if something goes wrong

• Need Help?www.knowledgebureau.com/attorney/

When the power is abused

• First question - where is your authority?• Request to see a notarized copy or original copy of the

document• See if it requires activation – 2 doctors determine lack of

capacity• Talk to your legal contact• Just because you are a relation does not give you the authority

to act• Call the complaints officer at the Office of the Public Guardian

Personal Planning documents are very personal and every situation has their own facts that must be considered before a legal opinion is rendered. The examples provided in this presentation do not constitute legal advice and should not be relied upon.

If you have specific concerns please consult your professionals, legal staff or the Office of the Public Guardian.

A Final Note:

For more information, please contact:

Shelley E. Waite TEPPartner, Wills & Estates(403) 254-3683sewaite@mcleod-law.com

Thank you!