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Monday, February 1, 2010

Special power of purchase of necessities

When an adult loses mental capacity without having put planning documents into place, a guardian and/or trustee may be appointed by the courts to look after that adult's welfare. In most Canadian jurisdictions, the roles of guardian and trustee are two different jobs, though they may be filled by one person doing both jobs.

A guardian (though called by different names in some parts of Canada) is responsible for making decisions about the person and health of the adult. A trustee makes decisions about money and property. Unless these two roles are filled by one person, the guardian has no authority to spend or otherwise deal with the adult's money.

However, some jurisdictions have a special provision in place that allows a guardian (who is not also a trustee) to buy essentials on behalf of the adult without the consent of that adult or his/her trustee. Essentials could include things like food, shelter, weather-appropriate clothing or medicine.

This power is put into place to ensure that the guardian is able to keep the adult safe and healthy and to carry out the duties imposed on him or her by the court. Allowing the guardian to buy essentials might be necessary if a trustee has not yet been appointed or is ill or travelling, and is therefore not available. It could also be necessary if there is no trustee in place and the adult is in charge of his or her own finances but is refusing or neglecting to pay for essentials.

This power is intended to be a temporary measure only, not a permanent arrangement. If the audlt continually refuses or neglects to pay for essentials on his or her own behalf, this person might need a trustee to be appointed.

Once the guardian has purchased essentials for the adult, he or she must be reimbursed by the adult or the trustee for the adult.

This is one of those things that makes so much common sense, it makes me wonder how messy things must have been before the rule was put into place.

I talk more about how to be a guardian for an adult in my book, "Protect Your Elderly Parents".

1 comment:

  1. Hi Lynne:

    I'm preparing my will in B.C., Canada. I have 2 minor children. I've appointed a guardian for the 2 kids, in the event that my wife & I, pass-away. A trust will be setup for the kids. How do I specify or bequest funds to the guardian to help with the cost of raising my 2 kids? I assume the guardian cannot withdraw funds from the trust until kids reach legal age.



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