Nathan Spaling
Lawyer, Social Service Worker &
Founder of the Capacity Clinic
Appointing substitute decision makers do not often have the same appeal as the attention paid to selecting an estate trustee. In my experience as an estate planning lawyer, I would often have to provide considerable information about the potential impact of these substitute decision maker appointments in the context of their overall future wellbeing. A surprising amount of people often believe:
- an estate trustee and a power of attorney/substitute decision maker were the same thing; and
- they would eventually be able to tell when they cannot make their own decisions and the substitute decision maker should start.
So my added time to provide information on this area often did not result in additional billables but instead it reduced the chances for future conflict/costs for my clients and in turn reduced my professional liability exposure (although in hindsight I should have increased the cost of the power of attorney package – because this was truly value added).
Across Canada, if an Adult appoints a substitute decision maker for health related decisions it will have different essential requirements for the Adult to understand and appreciate than is required for appointing a substitute decision maker for property related decisions.
For example, in Ontario, the ability to sign/revoke a power of attorney for personal care is set out in the Substitute Decisions Act at section 47, where it states:
“A person is capable of giving a power of attorney for personal care if the person,
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person.”
However, the ability to sign/revoke a continuing power of attorney for property is set out in section 8(1) of the Substitute Decisions Act which states:
“A person is capable of giving a continuing power of attorney if he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) 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 power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her.”
If a client has a small network, it was not uncommon to appoint the same person to make decisions about their property and health. However, especially in situations where people had multiple children, multiple trusted friends, desire to work with trust companies or professional advisors – my clients would often appoint multiple substitute decision makers for either health or property to act jointly OR there were different appointments for health and property decisions. While there ultimately is no right or wrong answer to a person’s preferred appointments, I quickly discovered that my clients would not be expected to be aware of the difficulties that may arise if these substitute decision makers do not get along while acting on their behalf. However, I can think of many instances where clients would learn this information and apply it to their existing appointments – the ability for your client to do so, may not be legally required but can help ensure your future wellbeing is taken care of as planned and is a quality data point to support intact appreciation!
How do you typically have these conversations with clients – is there a set summary that you provide for clients? How would decisions about where you lived be made if there were joint substitute decision makers that could not agree? Who would they expect to pay for court direction (if needed)?
