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Saturday, July 3, 2021

The difference between parental permission and legal authority

Things have been extremely busy around our office lately. We have noticed a trend in our incoming new files; we seem to have an influx of adult guardianship matters. We are getting an average of one new guardianship file every day.

Adult guardianship requires an application to the court to appoint someone to look after a parent or other relative who needs help with decision-making because mental incapacity is making it difficult for the person to handle things alone. The sort of decisions in question can be financial or can be medical, or both. 

If the parent has put an Enduring Power of Attorney (for financial matters) and a HealthCare Directive (for health and medical matters) into place, adult guardianship should not be needed. The subject matter is the same. Unfortunately, some people will not face the fact that they need these documents.

A parent who has prepared the POA and the HealthCare Directive has several advantages over one who has not put documents into place. The one who has prepared documents has exercised his or her choice of who can make decision for them. They do not have to hope that the right person will apply or that there won't be a fight among the kids as to who should be taking care of them. They also get to personalize their documents to limit certain actions or to expand them. For example, some parents like to include a clause giving away certain household items in the event that they move into a care facility.

There is also a financial advantage; preparing a POA and HealthCare Directive is MUCH less expensive than an application to the court to appoint a guardian. All in all, refusing to have these documents is choosing to do things the hard way.

Despite the fact that more and more families are being faced with the need for adult guardianship, there is still a reluctance among some seniors to put documents into place. The most common reason I hear for not needing these documents is "my son/daughter knows what to do". I'm sure that's true. The problem is whether they will be allowed to do it. A bank is not going to simply release your information or your funds to your son or daughter, no matter how well you trust the kids. The land registry won't allow them to sell your home or transfer your cottage. The insurance company, the financial advisor, the pension administrator, the motor vehicle registry, and the doctors probably won't tell them anything at all, never mind let them do anything.

There is, after all, a big difference between parental approval and legal authority.

These are essential documents. I have no doubt that sons and daughters are more than willing to help their parents when the time comes. But the parents need to be sure they've set things up so the kids don't need to go through the courts for permission first.

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