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Tuesday, June 1, 2010

Can an executor review an aging parent's bank records?

Recently I was asked whether an executor named in a person's Will (in this case the person happened to be an aging parent) could legally go through the person's bank and tax records.

Assuming the person who named you as executor is still alive, then no you don't have the right to go through any private documents or records. The Will has no legal effect until the testator (person whose Will it is) has passed away.

I assume that if this question is being asked, it's because the aging parent is showing some signs of difficulty in handling his or her financial affairs. If so, you are right to start thinking about how you can offer some help. However, the Will isn't going to do anything for you. What you need is an Enduring (or Continuing) Power of Attorney.

The Power of Attorney gives someone the right to give assistance with financial, tax and property matters while the person is still alive. If there are already signs of confusion or memory loss, it might be a good idea to consider an Immediate Enduring Power of Attorney that will allow the helper to start assisting right away.

Another solution to consider is that some jurisdictions in Canada allow the aging parent to sign an agreement with a co-decision-maker. The difference is that a co-decision-maker makes decisions with the aging parent while an Attorney under Power of Attorney makes decisions for the aging parent. It is best to consider the least intrusive ideas first.

If you need to help an aging parent with finances, take action as soon as possible, because you don't want to allow the memory loss to advance to the point where options are very restricted. If you act quickly, your parent will still be able to make his or her own choice of who they want helping them.

Be sure to consult an experienced Wills and Estates lawyer because you don't want or need a "cookie-cutter" document. You want real assistance for your parent.

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