10 reasons families fight about senior care

I've come across this excellent article by Jeff Anderson on a blog called www.aplaceformom.com. As I read the article, I found myself thinking that Mr. Anderson certainly has some real-life experience with the families of seniors. Not surprisingly, one of the ten things mentioned in the article as being a source of strife is the parents' wills.

Best of all, in this article the author points out possible solutions for each of the ten issues. Click here to read the article.

If you want some ideas about what a family meeting can achieve, and how to hold a family meeting without fighting, check out my book called Estate Planning Through Family Meetings (Without Breaking up the Family).

Watch for my article on Power of Attorney in Caregiver Solutions magazine

The latest issue (winter 2012) of Caregiver Solutions Magazine carries a feature-length article of mine called "Their power of attorney names you...now what?" In the article, I talk about how to use a power of attorney on behalf of another person efficiently and without getting into trouble. In addition to the main article, I give 10 tips for acting under the POA, and 10 tips for dealing with the paperwork. So far, an electronic version of the article isn't available, so if you'd like to read it, you should check out newsstands for the magazine pictured below, or contact the magazine at www.caregiversolutions.ca.

Protecting Canada's Seniors Act

Did you know that a new law called "Protecting Canada's Seniors Act" has now been enacted? To read a commentary about it by Audrey Miller of www.allaboutestates.ca, an expert on seniors' issues, click here.

This new law, also called Bill C-36, makes an amendment to our existing Criminal Code. It does NOT create a new crime of elder abuse. What is does do is add a bit more juice to a judge's power to punish someone who is guilty of elder abuse.

In our Criminal Code, there are a number of things that a judge can take into consideration when deciding what sentence a person should get for a crime. Some are aggravating factors that would cause the judge to give a harsher sentence. These would be things like the accused having a record of similar crimes.

The judge can also take mitigating factors into consideration. These are things that would cause a judge to give a lighter sentence, such as a thief returning what he stole.

The aggravating and mitigating circumstances that a judge can consider are set out in section 718.2 of the Criminal Code. The new law, Bill C-36, adds a new aggravating factor - that being “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation”.

In other words, the judge may consider giving a harsher sentence to someone convicted of elder abuse.

Now we just have to figure out how to make sure that elder abusers actually end up in court. That will be no easy task, partly because so many perpetrators are family members and know exactly how to conceal their actions and persuade their elder family members not to expose them.

For those of you interested in elder abuse issues, I'm adding some new links to the "interesting links" section of this blog. Hope you find them useful.

Man, 91, dies after being left alone in Summerland care home

This is the kind of story that makes my stomach hurt, at the same time making me absolutely furious. It's the story of Alfredo Bonaldi, 91, who died recently after being left unattended in an assisted living facility in Summerland, BC for several days. Click here to read the article from the Vancouver Province. And for heaven's sake, don't leave your elderly relatives alone for very long.

Elders and Hurricane Sandy

I'm attaching a link to a story on a blog I like called www.TimeGoesBy.net. It talks about what it's really like for seniors when a disaster like Hurricane Sandy strikes their city. It also gives some wonderful suggestions about what the rest of us can do for the seniors in our lives to help protect them in times like that. Click here to read the article. The photo above appears in that article, and is credited to Andrew Burton/Getty Images.

You don't have to like what's in your parent's will

I wonder why people feel they have the right to decide what is "fair" in another person's will. Where does the sense of entitlement come from? The following note I received recently from a reader of this blog is typical of many I receive. It reveals an unhappiness with the terms of another person's will, and a willingness to jump in, question, judge and possibly force a change.

"My father (deceased) married the woman he had an affair with, and one of the executors (my brother) has claimed that all the grandchildren from both sides will inherit equally according to the will. Is this fair as the second wife has more children, who in turn have more children, and my father's blood grandchildren stand to get a very diluted inheritance, if any. Do they have any rights as beneficiaries and should I try to see the will for myself to review it?"

The father has every right to leave his money to anyone he decides and nobody has to like it. It's his money. His will. His choice. The father isn't obligated to leave any of his money to his "blood grandchildren" or even to his own children for that matter, so nobody should feel that they have the right to question his will on the basis that the blood grandchildren will receive less. If he wants to make an equal distribution among grandchildren, so be it.

The contents of the will appear to have come as a surprise to the reader, and I can guess why. If the father had told anyone that he was planning to benefit all grandchildren equally, he would have been under unwanted pressure to change the will. Pressuring someone to change a will to favour you or your children is elder financial abuse, no matter how you rationalize it.

This wouldn't appear to be a case of a son protecting a vulnerable older person against a recent friend who has coerced a senior into changing the will. I can certainly understand interference where it appears a senior is unwillingly being influenced by someone. In this case we are talking about a marriage and there is nothing to suggest it was a recent marriage. Also, the will is not particularly one-sided, as it sets out an equal share to everyone.

The reader's desire to see the will for himself (and presumably make a decision about the accuracy of the executor's statements regarding the grandchildren) is interesting, as the reader would appear not to be a lawyer or anyone else trained to interpret wills. If the father has passed away and the reader has not been given a copy of the will, I assume this is because the reader is not entitled to see the will. You don't get to see someone else's will just because you want to see it. The fact that the deceased is a parent doesn't entitle an adult child to see the will. If you're a residuary beneficiary, you'll get a copy. If not, you won't. Again, nobody has to like it, but that's the rule. 

I get the impression that the reader would like to read the will, make his own decision about who gets what, then attempt to force the executor to do things his way. This may also be why he was not named as an executor.

Where a parent has mental capacity to make a will, and takes all legal and moral obligations into consideration when making that will, the parent's wishes as expressed in the will should be respected.

How to convince your elderly parents they need care

The title of this post shouldn't surprise anyone. It isn't news that many seniors refuse all offers of care, whether the offer is to live with one of the kids, to move into long-term care or to find in-home caregivers. The reason for the refusal is that we're all human - some seniors don't want to admit their growing frailties; others think that accepting care is the start of the slippery slope to the grave. Some are worried about the cost, and there are still many who are terrified that they will be "warehoused", abused or forgotten.

So if your aging parent needs care and won't accept it, how do you persuade them to at least consider it? The attached article from www.over50web.net has some tips. Click here to read the article.

I spent quite a bit of time on this topic in my book called "Estate Planning Through Family Meetings (Without Breaking up the Family)". You might find that helpful as well. Click here to order a copy.

The Sneaky Kid's Guide to Aging Parents

I really like this new article from www.boomertoboomeronline.ca. I always like articles that are clear, down to earth and give sensible advice to people who are desperately looking for some realistic help. In this article, the author gives several ideas for figuring out whether or not your aging parents are coping on their own. They are ideas that you can actually use. In fact, I used a few of them myself in the past.

And don't let the phrase "sneaky kid" worry you. The message endorsed by the article is "I love you, I owe you, please let me do some things for you so I don’t have to keep worrying that you’re okay." How can you argue with that? Click here to read the article.

Struggling with an abusive aging parent

I read a lot of material about aging parents and family dynamics. I've even written my share about them. But every now and then I come across an article that illuminates the subject for me in a way that I hadn't seen before, or gives me new food for thought. Dr. Marc Agronin's article in the New York Times called "Struggling With an Abusive Aging Parent" is one of those articles.

Dr. Agronin talks about how as adults we may have to deal with the fact that our parents were abusive to us, or had other issues (such as addiction) that led them to behave in ways that we find hard to forgive. He talks about how our reactions to our parents manifest in our behaviour toward them when the parents become the ones who now need our care and help as they age, and how this makes us feel.

It's a compassionate but common-sense look at how families behave, and Dr. Agronin offers a couple of helpful tips as well. I urge you to read it if you're struggling right now with caring for a parent that you find hard to forgive. Click here to read the article.

10 ideas for reducing stress when looking after an aging parent

Acting on behalf of aging parents is well known to be stressful. From time to time, you will have to take steps on behalf of your parent that are in the best interest of the parent, but not what the parent wants to have happen. These are things like taking your parent to a doctor for a mental assessment, taking away the car keys or credit card, or hiring a caregiver.

The steps that are against your parent's wishes are the most stressful of all. And not just for you. Think about what it must feel like to be the parent in these situations. Your parent may be distressed, anxious or disoriented, as well as somewhat miffed at you for not doing what you're told.

Here are 10 ideas for keeping your parent's anxiety - as well as your own - to a minimum:

1.  Involve your parent in the decision-making process to the extent that he or she can handle. This level of involvement is different for everyone. While your parent might not be able to handle the documentation and financial transactions that are part of the sale of a home, he or she may still be perfectly capable of deciding which personal items in the home he or she wants to keep.

2.  Keep your parent and your siblings informed as to steps that you have taken on your parent's behalf. Proactively giving out information is going to prevent you from getting telephone calls and email messages constantly and having to repeat the same information to several people. For example, if you had said that you would contact an estate-planning lawyer on behalf of your parent, let your siblings know that you've set up an appointment.  As your parent is the focus of the situation, you should keep him or her up to date personally if at all possible.

3.  Find efficient ways to communicate with your family as a group. Set up a distribution list on your email that includes all immediate family members so that you can send one message to all of them with one click. Or set up a Facebook page or web page for your family so that you can post information that they can access when they have time. If you don't want to use your computer as your main means of communication, set up a telephone-tree arrangement in which you ask each person you call to call two or three others and pass your message along.

4.  While you are dealing with your parent, either privately or in the company of advisors or family members, be professional and calm. If you are an emotional wreck, your distress will rub off on your parent. This will only make things worse, as your parent could be frightened about matters if you cry or break down every time estate planning or medical appointments are mentioned. He or she will wonder what terribly upsetting information you're hiding. If your parent is confused on any details, your distress will cause him or her to give the most negative interpretation possible to the issue.

5.  If staying calm is impossible, you need to take a break. If there is nobody in your family who can help you with caring for your parents, even if it's only for a weekend, you might look into hiring a caregiver for a portion of each day, or for a certain day of each week. Also consider other living arrangements for your parent that offer more support.  If you find that you are always exhausted, that you are catching numerous colds each year, or that you are depressed, it could be that you are over-doing it and need some relief.

6.  If you are acting on behalf of your parent on financial matters, make sure that anyone who becomes involved, such as appraisers, realtors, accountants, bankers and lawyers, know that they should contact you directly and not your parent.  Give each person a copy of the document that gives you legal authority. This isn't so that you can hide things from your parent; this is so that your parent doesn't have strangers calling him or her to ask private financial information or to talk about unknown transactions. If your parent were capable of handling that situation, you wouldn't be involved in the first place.

7.  If your parent asks you questions, answer them. Help your parent undestand what you are doing and why you are doing it. When he or she wants to see documents, even if it's for the tenth time, show the documents. Write down information such as upcoming appointments on a calendar and display it prominently, such as on the front of the fridge where you parent will find it.

8.  Make sure that bank statements, court documents, receipts and correspondence are kept in an orderly, accessible place. Chaos isn't helpful.

9.  Listen to your parent if he or she wants to talk about his or her wishes. This could be wishes about living arrangements, or about distribution under your parent's will, or even about what your parent wants to do next week. You may not always be able to carry out those wishes, but you should still know what your parent would like to see happen. Having someone listen carefully and take your parent seriously can have a very soothing effect.  If you say something like "Why should I listen? You're only going to forget what you said and tell me again tomorrow", you are only going to upset your parent and increase everyone's stress level.

10.  Keep up with the requirements of your legal authority to act on behalf of your parent. For example, if you are going to be required to give a legal accounting of the finances one day, try to keep current with the ledgers and books. Trying to put together a couple of years' worth of financial records on a deadline is unpleasant and stressful. Look into getting book-keeping software that will keep things straight for you.

Can a house be sold when one joint owner has lost capacity?

What happens when a husband and wife own a house jointly and one of them has lost mental and physical capacity? Can the house be sold? I'd like to share this reader's question with all of you because it asks about a very common situation that many of you will recognize.

"My dad was diagnosed with Alzheimer's disease and recently suffered a stroke.  He does not have a POA set up.  My parents have joint tenancy of their house in Ontario.  Is it true that we cannot sell the house to fund his nursing home expenses?"

 

The fact that you're asking whether "it's true" tells me that someone has already advised you that the house can't be sold. I have no idea whether that information came from a lawyer, realtor or just a friend, but I agree with them. The house can't be sold based on today's facts, but this can be fixed.

 

The fact that the house is held in joint tenancy by your father and mother means that the house can't be sold without signatures by both of them. It sounds as if your mother is capable of signing documents and is willing to do so, but she is only one half of the owners.

 

The question is what to do about getting your father's signature. From what you've said, he is not capable of understanding legal documents. This is not surprising given that he has Alzheimer's disease as well as the after-effects of a stroke. He cannot and should not be asked to sign anything. If he isn't capable himself, we have to look at whether anyone has the legal right to sign on his behalf.

 

Many people seem to think that a spouse can automatically sign things on behalf of the other spouse in difficult situations like this, but they are completely wrong.

 

The best solution at this point would be to use a Power of Attorney. If properly drafted, your father's chosen representative could use that document to give your father's consent for him, and to sign for him. However, you've already said that your father didn't set up a Power of Attorney, so that option is out.

 

There is another option. Someone can apply to the court to be appointed as your father's trustee. This would give someone the right to act on behalf of your father, with similar rights and responsibilities as that person would have under a Power of Attorney. Obviously going through this procedure is going to take longer and be more costly than simply using a Power of Attorney but in the absence of your father's planning, it's likely the best option.

 

It's essential that when you or your mother make this application to the court that you ensure that the power to sell real estate is included. It's not automatic in all jurisdictions.

 

If you need help getting started, any lawyer who does estate planning should be able to work with you. If you want to look into doing it yourself, you could always check out my book called Protect Your Elderly Parents: Become Your Parent's Guardian or Trustee.

 

 

 

 

 

 

 

 

 

My parent can't manage alone anymore. What are my options?

Your parent is getting older, and it has become obvious that he or she simply can't manage alone without significant help from you or your siblings. Do you know what your options are? Many people assume that they will have to apply to the court to become a guardian and/or trustee for their parents, but will they?

Before deciding to make that application to the court, it's worthwhile to consider whether there are any alternatives available. Each elderly person's situation and needs are unique, and it may be the case that those needs can be met by measures that are less expensive and less intrusive than having a guardian or trustee appointed.

For example, a senior living alone might have no trouble understanding his or her banking and looking after investment transactions but might have physical limitations. It might be possible to avoid the expense and trouble of having a guardian appointed for this person if someone could accompany him or her to the bank on a regular basis. Being appointed as a trustee who controls this person's money should be a last resort.

Alternatives should be explored for two reasons. The first reason is that guardianship and trusteeship can be invasive to an individual. How would you like it if someone took over control of your whole life? The second reason is that court applications can be expensive and may deplete a modest estate unneccessarily.

In many jurisdictions in Canada, the law expressly says that no guardian or trustee can be appointed if there are effective alternatives available. In Saskatchewan, for example, if you are applying to be a guardian or trustee of an older adult, you will be required to first show the court that other, less intrusive, methods have been tried or at least seriously considered. In the Northwest Territories, the court won't make a trusteeship order unless you can satisfy the court that there is no alternative available that is less restrictive of the older adult's decision-making rights.

Not all jurisdictions have this kind of requirement stated right in the law itself, but the concept of using the courts only as a last resort is well established.

Some of the alternatives you might consider are listed  below. Some address guardianship issues and some address trusteeship issues, and perhaps your solution will be a combination of them:

1.  Informal trusteeship - if your elderly relative is receiving benefits from the federal government (OAS, CPP, GIS, spouse's allowance, survivor's allowance), Veteran's Affairs or the provincial government, it may be possible for a family member to apply directly to the government to become an informal trustee for those benefits alone.

2.  In-home support - if the issues facing your relatives are largely due to physical limitations and not loss of mental capacity, you might consider assisting your relative to continue to live in his or her own home, if that is their wish. This is often possible if you arrange suitable in-home helpers to assist with nursing needs, housekeeping, nutrition, or transportation.

3.  Move in with relatives or into a supported living facility - sometimes the move to an environment where the older relative has access to the amount of help needed when it's needed can avoid the need for formal legal arrangements.

4.  Health care directive - this document may be signed by the older relative to appoint someone of their choice to make medical, health and personal decisions for them when they are unable to do so alone.

5.  Representation agreements - in British Columbia, Saskatchewan and the Yukon, an older person can make a written agreement with a trusted friend or relative who is willing to assist the older person with decision-making. This is only for personal decisions and not for financial decisions. Alberta and the Yukon also have supported decision-making arrangements as well.  Unlike health care directives which allow someone to act for an older relative, representation and supported decision-making agreements allow someone to act with the older relative.

6.  Enduring Power of Attorney - this document may be signed by the older relative to appoint someone of their choice to take over management of financial matters. The document can either take effect immediately, if that's what the older person wants, or it can come into effect at a later date when the older person begins to lose mental capacity.

7.  Bank power of attorney - unlike the Enduring Power of Attorney mentioned above, which would cover all of a person's assets, a bank power of attorney is signed only for a specific bank account or investment. It's a perfect solution when the older person really only needs help with banking or bill-paying.

I've talked about many of these alternatives in greater detail in previous blog posts, and I'll continue to develop others. It's essential that when we set out to help our older parents and relatives, we take the time to understand what they need, and offer only as much help as it takes to fill those needs.

Why is it so hard to talk to my parents about estate planning, and how do I overcome that? Part I

Some topics have unwritten values attached to them that we react to without consciously realizing it. For example, some life events are generally agreed upon as being good news for those who are involved, such as weddings, promotions at work, or winning the lottery. Other life events are generally agreed upon as being bad news, such as divorces and bankruptcies.

Unfortunately, almost all aspects of estate planning fall within the "bad news" category. It's almost impossible to characterize life events such as dying or becoming critically ill as anything else. Without even having to consciously understand or articulate the reasons, we know that talking about estate planning will involve talking about unpleasant subjects. This is the challenge you are facing when trying to get your parents to talk about estate planning.

Everyone agrees that it's hard to bring up a sensitive topic such as asking your parents to plan for their eventual passing away. It's even toughter to bring up planning for mental incapacity. In most families, talking about money is also taboo. Many people who fully understand the need for planning to be done still delay doing anything about it because they simply don't want to open up emotional or controversial subjects with family members.

If you're uncomfortable talking about death, particulary with beloved family members, you're certainly not alone. Avoidance is a very natural reaction to unpleasant topics. This is why in most conversations about estate planning you will not usually hear an individual say "when I die"; instead you'll hear the person say "when I pass away", "when my time is up", "when I'm gone", "when I kick the bucket" or most commonly "when something happens to me".

Our society has several euphemisms for dying, and for good reason. You don't want to frighten, sadden, or upset your listener, but you strongly suspect you will do so when you bring up certain topics. Euphemisms help to keep a little bit of distance between yourself and the idea of dying. This is certainly understandable; nobody wants to be the cause of tears or sleepless nights. If a family member is terminally ill or shows signs of dementia, the task of bringing up estate planning seems impossible. Take comfort in the fact that almost everyone feels the same way.

Added to the discomfort of the topic itself is the worry about setting off sensitive family dynamics. Almost every family has at least one or two individuals who have had disputes with relatives, or personalities who clash with others. Sometimes getting along with certain family member is a matter of delicate balance. If harmony has historically been hard to achieve in your family, it might seem to go against the grain to disturb it now by talking about difficult issues. In other words, it's just easier not to start a fight by bringing up a sensitive topic.

Often people think that talking about death and money in the same conversation is distasteful. They worry about looking greedy if they ask their parents if they've made a will. However, estate planning and incapacity planning are not just about money. They are also about looking after each other, protecting loved ones, making provision for minor children or grandchildren, and showing respect for the wishes of those doing the planning.

*Coming up in Part II: Overcoming the negative view of estate planning*

*This post was excerpted from my book "Estate Planning Through Family Meetings (Without Breaking up the Family)".

Dementia crash: teen's family pleads for law change

In the UK, an 89-year-old man drove the wrong way on a freeway, causing a collision that killed 19-year-old Charlotte Pitwell. It was later revealed that the man suffered from dementia. As a result of the accident, Ms. Pitwell's family is determined that the law must be changed to restrict older drivers.

Click here to read the story.

I admit that on the few occasions I have been driven somewhere by my 90-year-old uncle, I watch his driving carefully, looking for signs that he shouldn't be behind the wheel. He, however, doesn't have dementia. No doubt his reactions are slower than they used to be when he was flying with the RAF, but otherwise he still exhibits very safe driving.

Loss of a driver's license is a big deal to seniors. It's a loss of independence. It's a confirmation that life is being down-sized to accommodate aging. And let's face it, none of us likes to be told what we can and cannot do, especially by our children.

Should the law tell us when we should stop driving, or should that be something that is voluntarily regulated by each of us? Read this article and see what you think.

Ten reasons you might want a trust in your will

Whether or not a trust in your will would be useful depends only in part on how much money you have to deal with. Trusts in wills (called testamentary trusts) are not only for those with multi-million dollar estates; they can also be very useful for people like you and me. Although many people shy away from the idea of a trust because they believe it must be complicated, in reality it's more simple than you might think.

A trust is created in a will whenever your trustee (usually your executor) holds onto money or property for someone else, i.e. one or more beneficiaries of your estate. The terms of the trust such as when the beneficiaries are paid and how much they are paid are set out in your will, by you.

A trust is put into a will to serve a particular purpose, and in this post I'd like to briefly describe the top ten common purposes:

1.  A child inheriting under a parent's will can inherit the entire share on the day they reach the age of majority. A trust can be used to hold that share,or some part of it, until the child is older and more mature.

2.  A trust can protect a child who is hopeless with handling money by ensuring that a pre-determined amount is paid to the child on a monthly or yearly basis.

3.  A child with a drug addiction can be protected by a trust that pays for basic necessities such as rent, but does not make the whole share available at once.

4.  The share of a handicapped child can be managed for the child's lifetime in a way that brings the parents peace of mind, while at the same time doesn't cause the child to lose valuable provincial health benefits.

5.  A spouse who is already in a high tax bracket may not want the additional income that would be earned once a share of the estate is received. Setting up a trust for the spouse's share allows the tax to be earned (and paid) by the trust rather than the spouse.

6.  In the case of a second marriage, using a trust would allow a person to give a surviving spouse the use of assets (such as the family home) for that spouse's lifetime, after which the assets could go to the children of the first marriage.

7.  A trust can be set up to provide for emergency funds for any vulnerable family member - a child, an elderly parent - to be used when and if they are needed, with any remainder going to the family members you specify.

8.  A trust provides funds for the taxes, insurance and upkeep on an asset that is used by more than one beneficiary, such as a lake cottage.

9.  Funds that are held in a trust are safe from creditors of the beneficiary (except in the case of bankruptcy).

10.  If a beneficiary's marriage breaks down, funds held in trust are generally not held to be matrimonial property, and are therefore not lost to the beneficiary's divorce.

As you can see, these are things that affect even those of us with modest estates. If your lawyer is suggesting a trust for your will, keep an open mind to see if it would work for you.

Planning your parents' retirement

Most people I know think that they won't be impacted financially by their parents as the parents get older. In fact, if I raise this topic I usually get an answer along the lines that the parents don't have much, so the kids aren't expecting an inheritance when the parents pass away.

Okay, so there won't be any funds flowing from your parents to you, but will there be funds flowing from you to them?

As you plan for your own retirement, have you thought about whether you'll need to support or partially support your aging parents? If they "don't have much", chances are good that the cost of long-term care or even hanging onto their home might be more than they can handle financially.

There is a really good article about this by Ted Rechtshaffen in the Financial Post. Click here to read it. Along with discussing how it might impact you, Mr. Rechtshaffen also suggests some solutions.

Attached photo by Vincent Kessler/Reuters.

Mom's showing signs of dementia, should I get power of attorney for her?

All of us whose parents have reached a certain age notice when our parents begin to show the early signs of memory loss or disorientation. It may be distressing or alarming, but no matter how we feel about it, we ask ourselves what we are supposed to do when this happens. A reader recently asked me the following question:
"My mother has me as an executor in her will. She is showing signs of senility. Should I consider getting a power of attorney for my mom now before things get worse? My dad is even older, but not showing signs of senility."

The parents in this family are lucky that they have a child who is alert to changes and willing to offer the help necessary. The fact that this child is the executor is not relevant to the question, except that the executor appointment shows that the parents trust the child to deal with legal matters.

Yes, I believe that these parents should have powers of attorney documents put into place, assuming they are still able to understand and sign them. The type of document needed is often called "enduring" or "continuing", or "power of attorney for property". This type of power of attorney, unlike the regular business power of attorney, is designed to last or continue even though its maker might lose mental capacity after the document is made.

The reader mentions that the father seems not to have any signs of incapacity. I would recommend that both parents prepare documents now and not wait until the father also begins to lose his capacity. I also recommend that the parents consider signing health care directives to put someone in charge of medical and personal decisions should that become necessary.

A question that will have to be addressed is whether the power of attorney document is to come into effect immediately or to come into effect at a future date. The future date is the date that the parent loses mental capacity. Often when a parent is already demonstrating signs of memory loss, the best option is to have the document come into effect right away. In this reader's situation, perhaps the mother's power of attorney should come into effect immediately but the father's document should come into effect in the future if he should need it. This is something that can be decided between the parents and their lawyer at the time the documents are prepared.

A significant issue addressed in this reader's question is that of acting now before things get worse. Typically, seniors with dementia or Alzheimer's disease do deteriorate (remember I'm a lawyer, not a doctor, and I'm speaking only from my personal observations). Therefore, if you wait too long to act, the opportunity to have legal documents prepared may well be lost. A person must have mental capacity to sign legal documents. Capacity doesn't have to be perfect, and most seniors who are in the early stages of deterioration are still capable of signing documents.

Should seniors see a lawyer to have wills or powers of attorney prepared, the lawyer will assess the senior for capacity. An experienced lawyer will know that a person  who is beginning to demonstrate incapacity will have good days and bad days, and will do everything she can to maximize the senior's likelihood of having a good day. For example, the lawyer might meet the senior at the senior's home rather than asking the senior to come downtown, which could be disorienting.

It's clear that the child in this question understands the importance of a power of attorney. It also sounds like he or she is willing to act as the attorney in that document. However, it's essential to remember that whether the document is prepared and the choice of attorney are decisions that belong to the parent. The child can raise the subject and provide practical help like a ride to the lawyer's office, but ultimately it's up to the parents to sign or not sign documents.

The parents might choose someone else to act under the power of attorney, so the reader should be prepared for that.

Despite the fact that time becomes the enemy once incapacity begins to emerge, try not to rush elderly parents into specific decisions. Rushing them often results in nothing but upsetting or frightening them, so be patient.

Wrong legal information makes it harder to help aging parents

Urban myths, re-told anecdotes and fictionalized TV lawyers - they are all out there and all help add to the confusion of what is really the law and what is not. One of the main reasons I write this blog is that I know how many of you have "information" that you question. You just want to ask someone if it's true or not. I encourage everyone to keep asking questions.

There are people whose lives are made more difficult and more frustrating because they have wrong information. Take this particular reader - let's call him John - as an example. The following is part of a note I received from John:

"I can't take my parents to a lawyer to write their Powers of Attorney or wills as both are indisposed at home, and dad can't see to sign and also has slight dementia (not certified by a doctor)."

This is someone who has their hands full, in a situation that many of you probably recognize. But things are really not as bad as John thinks. Let's look at it a bit more closely, starting with John's mother.

Why can't his mother sign new documents? The only reason given here is that she is indisposed at home. That's not too unusual; many seniors have mobility issues. The comment about dementia doesn't seem to apply to her, so as far as I can tell the only issue is that she is housebound. That's easily dealt with; get a lawyer to go to her. And before you scoff at the idea, I can tell you that almost every Wills lawyer I know, including me, makes house calls. We want to make sure that seniors get the documents they need even if they can't make it to our office.

The real issue with John's mother is that she is being treated as an adjunct to John's father. John believes his father has some serious impediments to signing a will, and his mother is being swept along with that because John is thinking of his parents as a unit rather than two individuals in different states of health.

Now let's look at John's father. The first hurdle appears to be blindness. In reality, this is not a hurdle at all. Blind people sign wills every day. This is one of those nuggets of misinformation I was talking about. Every lawyer with some experience in wills can deal with this situation so if yours cannot, get a different lawyer.

The next hurdle is dementia. Of course John is right that dementia can be a serious issue, as a loss of mental capacity prevents a person from signing a will. However, John has mentioned "slight" dementia. Things have not yet progressed to the point where a doctor has been consulted, so this is apparently John's own diagnosis. While John may notice forgetful or unusual behaviour in his father, these changes may not be enough to prevent his father from signing a will. Again, John is not sure of the law as it deals with dementia and making wills.

Mental capacity doesn't have to be perfect. If it did, none of us would have a will. John's father doesn't have to be exactly the way he was when he was younger. He only has to understand the nature of a will and understand the choices he needs to make. While I understand John's anxiety on this point, I wouldn't be so quick to assume that his father lacks mental capacity. All wills lawyers are trained to determine whether any person giving them instructions has the capacity to do so and in this case I'd let the lawyer do exactly that.

I hope that John and others in his situation will understand from reading this post that it's not a good idea to rely on assumptions and on information from unreliable sources. Keep asking questions.

If you have Power of Attorney you don't need a joint account

Powers of Attorney continue to be poorly understood by the people who are forced to rely on them. I was reminded of this over the weekend when I spent some time talking with someone who couldn't understand why his parents' bank wouldn't let him use his parents' Power of Attorney to put his name on his parents' accounts as a joint owner.

My first thought when hearing about this scenario was that if you have a Power of Attorney you already have full access to the account. You can already do everything you need to do, such as pay bills, deposit money, roll over investments and obtain paperwork. So why would you need to be added as a joint account holder?

The big difference between having Power of Attorney access to the account and joint owner access to the account is ownership. When using a Power of Attorney you are supposed to be using the account to carry out financial transactions to benefit your parents, and you don't own the asset. When you add your name as a joint account holder, you are basically giving the money to yourself as all joint owners own the funds. That's hardly in your parents' best interest, is it?

A Power of Attorney doesn't give you the right to take assets for yourself. In fact that's the very opposite of what a Power of Attorney does.

Of course the bank isn't going to allow you to use a Power of Attorney to give your parents' money to yourself. Given the epidemic of elder financial abuse, I applaud the bank for being vigilant and knowing the limits of a Power of Attorney document. I'm sure that in this case there was no fraudulent intent by the child holding the Power of Attorney, but the bank doesn't know that, and was right to refuse the request.

At this point in the conversation, the child holding the Power of Attorney protests that he or she only wants to be added to the account to help the parents with financial transactions. But as I said at the beginning, the Power of Attorney does that for you.

I have heard of a growing movement among lawyers to suggest to their clients that they include a certain clause in their Powers of Attorney. The clause would say that the person they are naming under the Power of Attorney would not be able to use the document until they had spent an hour with a lawyer learning about what they could and could not do. I'm completely in favour of that.

What if my Mom's name isn't on the house when Dad dies?

Do you ever wonder whether the legal documents and arrangements you've had in place for years need to be updated to suit your current situation? If so, you're not alone. Here's a question I recently received on this blog that is similar to many reader questions:

"My father has the house in his name only. My parents have been together for 60 years (and in the same house). Should my mother push to have her name added to the deed or is it assumed that after 60 years of being in the house it's considered hers too? My father's health is starting to fail and I just want to make sure everything is in place. He did leave her the property in his will, but not sure if that would cause tax issues?"

As your father makes these decisions about his property, here are some of the things he should consider:

If only one name is on a land deed, it will not be assumed that anyone else owns it. Not even a spouse of 60 years.

The contents of the house, on the other hand, will be assumed to belong to your mother if she outlives your father, and vice versa.

Depending on where in Canada your parents live, your mother might have a dower right to the property. That right only exists in a couple of provinces today. It gives a married person the right to live in the matrimonial property for the rest of his or her life, but it does not convey ownership. The spouse with the dower right could not sell or mortgage the property, which would eventually pass to the beneficiaries of the first spouse's will.

The fact that your father has left your mother the house in his will is good, as on the face of it this means that she will not lose her home should her husband pass away. She needs that peace of mind, as any of us would.

I don't believe that any tax issues would arise from this transfer, assuming that the house is your father's principal residence. From the information you gave me, I'm prepared to assume that it is his principal residence until I hear otherwise. Each of us is allowed to own and eventually sell/give away a principal residence without having to pay any tax on the transfer. So that means no tax to the estate because of transferring the house.

Your mother should not experience tax issues because of the house either, as Canadians do not pay tax on property we inherit from Canadian estates. This is not to say there will be no tax payable on anything in the estate; my answer is restricted to the tax situation on the house.

Please understand that I'm giving this answer with only a few words of facts. There could be other facts that affect the situation (for example, why is it in your father's name only anyway?). It never hurts to discuss tax questions with an accountant.

For the sake of completeness, I'll point out the downside of having the house only in your father's name and his leaving it to your mother in his will. First of all, debts and expenses of an estate must be paid before a beneficiary gets anything. If there are a lot of debts in the estate, it's possible the house would have to be sold to pay them. Secondly, the probate fee you pay at the court is based on the value of the estate. Some provinces, especially Ontario and BC, have high probate percentages, and if the house is in the estate (which it will be if it's in your father's name alone) it will increase the cost of probate.

These are all factors for your father to contemplate before making a decision about what is best for himself and for your mother.

You said your father's health is failing. If this means that his mental health has begun to deteriorate, it may soon be too late for him to make legal documents dealing with his property. He doesn't need perfect mental abilities of course, but he does have to be able to understand what he is doing, and the effect his actions will have on his family. If he is going to make changes, it will have to be done soon.

I'm really glad that you're helping your parents by openly discussing these issues with them and finding the information they need. I hope my answer helps with the decision-making process.