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Saturday, July 21, 2012

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.

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