Since you asked... all about Protect Your Elderly Parents

A reader has sent me a question asking about my first book, called "Protect Your Elderly Parents", which was published by Self-Counsel Press in 2008. Here is his question:

"I want full details of your book called "Protect your Elderly Parents", i mean i just want to know what are the things which you have mentioned in it and what are the responses you got from the people who had gone trough your book ! I totally love this kind of books where they mention the importance of Elderly people or stuff related to that !"

I love talking about the stuff in my books. If I didn't have a passion for these topics, I would never have written about them!

This book tells readers how to get appointed by the courts as a guardian or trustee, or both, for parents who have lost decision-making ability. I wrote it because nobody ever talks about what has to happen if someone fails to prepare power of attorney and health care directives. And the legal process can be a mystery to many. There are tons of articles and books urging people to prepare their documents, but few that tell us what to do when it's too late to do that planning.

And people do leave it too late. Whether it's because they don't want to talk about unpleasant subjects like dying or losing mental capacity, or because they think they'll have time to do it "later", many of us simply don't ever get all of our legal ducks in a row.

In the book I talk about who can apply to be a guardian or trustee, and what to do and not do once you are appointed. I make sure that people fully understand the role of guardian or trustee before they even approach the court. I talk about less intrusive alternatives they should consider before going to court. I talk about record-keeping, legalities, communication with others and give specific examples of how to deal with certain situations.

I give guidelines for how to be a good representative in terms of what to focus on and how to do the job humanely and properly. I urge compassion, patience and common sense throughout the book. I talk about how to separate your own agenda from that of your parents. I'm clear about what you can't do from either a legal or a moral standpoint with someon else's money.
The book contains all of the forms needed in every province and territory to apply to the court to be appointed as trustee or guardian, and to apply to the court for reviews or renewals of orders. I've also included detailed checklists.

When the book came out, despite the fact that it was my first book and nobody knew me, it received enormous media coverage across the country. I was interviewed from Vancouver to Cape Breton as everyone recognized the importance of looking after vulnerable seniors. I appeared on BNN, Global TV, CityTV and CBC radio to talk about the issues raised in the book. If you'd like to see more feedback, check out the comments on the lower part of my blog that I receive from blog readers and people who attend my seminars.

Lawyers have contacted me to say they have given out this book to clients to ensure they understand the role they are taking on with respect to their parents. Colleges have told me they've included it in their Legal Assistant Programs. The feedback I receive the most often is that all of my books are actually readable, as they are not full of legal terms.

The popularity of this book led directly to the creation of my third book, called "Estate Planning Through Family Meetings (Without Breaking up the Family)" as I was asked again and again how to have the difficult conversations with parents and siblings.

"Protect Your Elderly Parents" is currently being updated to reflect the fact that Alberta, for example, has had new adult guardianship laws brought into effect, and I'm re-visiting each and every chapter of the book to see what can be improved or updated.

Hope you enjoy reading it.

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.

 

 

 

 

 

 

 

 

 

Protect Your Elderly Parents to go into second printing

I'm very pleased and proud to announce that my first book, Protect Your Elderly Parents: Become Your Parents' Guardian or Trustee is going into its second printing next month. I'm hard at work on revisions to make sure that all of the information is absolutely up to the minute. The book contains information, instructions and forms for every province and territory so I have lots of checking to do! Thanks to everyone who helped make this book a success. I sincerely appreciate the fact that so many people read my words and find them helpful to their lives and families. Believe me, I don't take that lightly.

Lynne

15 ways to stay out of trouble when acting as Power of Attorney

Individuals acting on behalf of a family member or friend under an Enduring Power of Attorney can be held liable for fraudulent use of the assets, and for preventable mistakes. And mistakes are certainly easy to make. Many people acting under Enduring Powers of Attorney tell me that they don't know of reference materials that clearly set out what they are supposed to do and what they are not supposed to do to stay on the right side of the law.

This is my list of suggestions for anyone acting under an Enduring Power of Attorney (a.k.a. Continuing Power of Attorney, Power of Attorney for Property) to help stay out of legal trouble while at the same time doing a good job for the donor who appointed them:

1.  Read the document that appoints you to look for details about powers you have and any restrictions placed on you. If you're not sure whether you can do a specific thing, ask a lawyer.

2.  File income tax returns as required and make sure they're on time. Losses to the estate such as penalties and interest on unpaid  taxes are your personal responsibility.

3.  Pay the donor's bills as they become due. Avoid paying interest or late fees. If you're forgetful or busy, set up automatic bill payments.

4.  If you want to sell real estate, get an independent appraisal from a qualified appraiser to explain why you set the price as you did. Note that in some Canadian jurisdictions you will need a court order to sell real estate, depending on what specifics are included in your document.

5.  Shop around when making a major purchase or planning renovations on behalf of the donor and get written quotes. Keep receipts.

6.  When it's recommended that you get court approval for something, get it.

7.  Hire professionals (e.g. appraisers, lawyers, accountants, investment advisors) to help you.

8.  Insure real property and valuable personal property. Put valuable personal property of the donor in a safe place (e.g. safe deposit box) that is not accessible to other people.

9.  Don't mix the donor's property with your own.

10.  Don't put the donor's property in your own name.

11.  Don't use the donor's money to pay your personal bills or invest in a business venture for yourself. Don't borrow money, planning to pay it back on your next payday or some unnamed future date. Keep in mind that the Canadian Criminal Code recognizes a crime called theft by someone holding power of attorney.

12.  Find the donor's Will and store it safely. If you need to distribute items, for example when the donor moves from a house to long-term care, follow the Will as closely as you can. If the donor passes away, give the original Will to the executor named in the Will.

13.  Don't pay yourself a wage for being the Attorney unless you are sure that you are specifically authorized to do so by the document or by the court.

14.  Maintain meticulous records. They don't have to be fancy, but they do have to be accurate, complete and up-to-date.

15.  Respond to reasonable questions that are raised by other members of the family who are concerned about the donor. Providing answers can allay fears and prevent speculation and leads to squabbles and lawsuits.

These tips are condensed from my book called "Protect Your Elderly Parents".

Reader feedback

I always love hearing from readers of my blog or my books with any and all comments, but particularly when the feedback is positive. Today I received this email from someone who is the trustee for an assisted adult who just finished reading my book called "Protect Your Elderly Parents":

"What a great book. So easy to read and understand. It couldn't have been given to me at a better time. My mother is also aging and one really needs to consider her future. Thank you so much for this book."

You're welcome!

Answering your question - adult guardianship forms

I've been asked a couple of times now where people can find the forms they need to apply for guardianship or trusteeship of their aging parents. This is the subject of my book, Protect Your Elderly Parents, which contains a CD with all of the forms needed for every province and territory in Canada. It also includes sample forms for record-keeping and passing of trustee's accounts, as well as chapters on guardian's duties, trustee's duties, limitations on those roles, and how those legal appointments come to an end. Updates for Alberta are underway and will be available to those who buy the book at no extra charge. Click here to see more about the book. The feedback I've received is that it's very easy to use.

Another source you can look at is the webpage for the Office of the Public Trustee and/or Public Guardian for your province or territory.

Is there an easy way for a guardian of an adult to keep records?

Many clients who are the guardians and/or trustees for adults tell me that they find it hard to keep up with record-keeping. We all know that trying to fill in details a week later (or, if we're honest, even more than a week in some cases) is not very effective. I'm often asked for ideas about a simple way to keep track that is easy and quick.

In this post I'm talking about guardianship record-keeping, as opposed to trustee (financial) record-keeping (which will be the subject of a future post). In other words, these are non-financial items that need to be recorded. They will include:

• appointments with doctors, therapists, dentists, geriatricians, etc


• dates involving legal matters such as granting of guardianship, or review


• moves to new home, long-term care, etc


• home visits for services including health care, cleaning, daily living etc


• phone calls to arrange services


• guardian appointment with government agencies or private providers


• applications or correspondence sent


• days that new treatments or medications were begun


• dates of surgeries


• visits to relatives, library, shops, restaurants etc


• requests made by the assisted adult


• dates of travel


• dates on which the assisted adult was ill, either severely or mildly (e.g. a cold)

The most simple way of recording all of these activities is to buy a daytimer book such as offices used to book appointments. Each book usually covers a year. They can be small enough to fit into a purse, briefcase or backpack. Have a book like this that is completely dedicated to the assisted adult and never write anything in it that does not apply to him or her in some way. In this book, record the information on the day it applies.

Most days you will probably not write anything. But on the days that you do, you can keep it simple by writing something like "Dr. Smith, for flu shot" on the day you take the assisted adult for his or her flu shot. It really can't get any simpler and easier than that. If you are ever asked by the courts to account for what you have done on behalf of the assisted adult, you will have a complete record at your fingertips. If you are ever asked by family members about when the assisted adult started their swimming lessons or discontinued a medical treatment, you will be able to find the answer right away. This book will also be handy when a doctor or other service provider needs to look back at what's been done.

You will find everything you need to know about both guardian record-keeping and trustee record-keeping in my book "Protect Your Elderly Parents".

Who should be guardian for your elderly relative?

Guardians for aging adults who need help with personal decisions are usually chosen from among that person's spouse, children, siblings, parents or close friends. The best choice for any individual will depend on who is available, who is suitable and who is willing to take on the job.

Guardianship is an interactive role. It's not a case of signing papers occasionally and never seeing the aging person. When considering candidates for guardianship, consider geographical distance. The guardian can't make day-to-day decisions in the aging person's best interests if the aging person has no opportunity to voice concerns or express preferences. Geographical distance can be the deciding factor if, for example, there are two chidlren who are both willing to be the guardian of their parent, while one of the children lives in the same town as the parent and the other child lives hundreds of kilometres away. The ultimate deciding factor is what's good for the parent, not what his or her children want.

Some questions other than geographical distance to consider when deciding who would be a good choice as guardian for an aging relative are:

• Is the guardian frequently unavailable because he or she is away on business or pleasure trips?


• Is the guardian already overwhelmed with other duties such as parenting or working?


• Is the guardian accessible to the aging relative in emergencies or times of stress?


• Is the guardian trustworthy?


• Do the aging relative and the guardian already have a compatible relationship?


• Is the guardian able to make important decisions without being unreasonably swayed by other family members?


• Has the aging relative ever expressed a preference as to who the guardian should be?

These notes were excerpted from my book called "Protect Your Elderly Parents".

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".

Who can a trustee support with an assisted adult's money?

If you have been appointed as a trustee for an adult, you probably know that you are supposed to use that adult's money in his best interest, and not spend it on other people. The exception is that you can - in fact you should - use his or her money to support his/her dependants, just as that person would have to do if handling his/her own money.

It seems like a simple rule, but real lives often seem too complicated for a simple rule to apply. Sometimes questions areise about exactly who is supposed to be supported by the assisted adult's money.

As a general rule, a person's dependants are his or her spouse, minor children, and children who are over the age of majority but cannot earn a living due to a mental or physical handicap. The trustee should continue to use the assisted adult's money to support these individuals.

Peole who do not fall within this definition of dependants are not automatically entitled to any financial benefit from the assisted adult, but may, in some circumstances, be permitted to benefit.

Note that the word spouse does not just apply to legally married spouses. Common law spouses are equally entitled to financial support. It's not always easy to tell whether an assisted adult's romantic partner is actually a common-law spouse. In a situation where the assisted adult is in a long-term, live-in relationship or has had a child with the partner, it is relatively easy to determine whether that partner is the legal equivalent of a spouse. It can be trickier where relationships are of shorter duration.

There is no magic number of months or years that automatically qualifies a person to be considered a spouse for all purposes in all parts of Canada. For example, you might fnd that a person qualifies as a spouse under a pension plan within a month but must live with the assisted adult for a year to become a spouse for Canada Revenue Agency's purposes.

If you can't determine whether a particular person in the assisted adult's life is a spouse and you are worried about the consequences of allowing this person to receive a financial benefit, you must take steps to clarify the situation. You can consult a lawyer who deals with family law. Alternatively, you can ask a judge for the court's guidance on the question.

Girlfriends and boyfriends who are not living with the assisted adult are generally not entitled to any financial benefit from the assisted adult's property.

Sometimes the situation is more complicated. There could be another person in the picture who is neither a spouse nor a child and would not normally be considered a dependant, such as the assisted adult's parent or sibling. In some cases, that person is living with the assisted adult or being fully or partially supported by him/her due that person's age, infirmity or illness. In such case, discontinuing the financial support could be disastrous for that individual. However, your job as trustee is to act only on behalf of the assisted adult and doing otherwise could cause you to violate your duty as a fiduciary.

This can be a truly uncomfortable position for the trustee. If you, as trustee, believe that the financial support to this person should continue, you should ask the court for permission for it to continue. For example, if the assisted adult's sister lives with him/her and is fully dependent on him/her because the sister has multiple sclerosis and cannot earn a living, it may be the case that the assisted adult feels a moral obligation to support the sister.

In this case, you should present the full facts of the situation (e.g. name, relationship, age, medical condition, the financial impact of the support) to the court. This can be done at the time you are appointed as trustee, or at a review or passing of accounts. You would ask the court whether it is alright for you to carry on with the existing arrangements.

This topic is covered in much more detail in my book, "Protect Your Elderly Parents".

New Adult Guardianship and Trusteeship Act

As of a month ago, Alberta has a new law which replaces the Dependent Adults Act. This will be of interest to people who are caregivers for seniors who have not put Enduring Powers of Attorney and Personal Directives in place.

The new Guardianship and Trusteeship Act has a different focus than the old act. The old act basically said that if you can't make your own decisions, someone can be appointed by the court to do that for you. In other words, it was all or nothing. The new act is based on the idea that mental capacity is a continuum and that any given person can be at any place on that continuum. Because of this idea, the help available to an individual can be in various forms based on how much help is needed.

Specifically, under the new act, a helper can be one of the following:

• a supported decision-maker who helps the senior make personal decisions. The decisions are made with the senior, not for the senior. The legal authority is given to the helper by the senior, who signs an authorization document. This was not available under the old act.
• a co-decision-maker who helps the senior with personal decisions, but who is appointed by the court. This wasn't available under the old act either, though many court-appointed guardians did try to accommodate the wishes of the senior.
• a court-appointed guardian, who makes decisions for the senior. This is the option that gives the helper the most control over the affairs of the senior.

Note that help with financial decisions hasn't changed much in theory from the old act, in the sense that trusteeship is still all or nothing.

There are new forms, of course, for preparing the documents. Those of you who bought my book "Protect Your Elderly Parents" will soon be able to use the link provided on the CD to download (at no cost) the updated forms. I'm working on them as we speak!

My new book is now available

I'm thrilled to let you know that my new book, "Succession Planning Kit for Canadian Business" is now available. To order online, click on the picture of the book on the left hand side of this blog. You can also pick it up at any Chapters store or order it from Chapters Online. Like "Protect Your Elderly Parents", this book is written for non-lawyers and is full of straightforward information written in plain English. The book is written in pretty much the same style as this blog.

If you have any questions or comments about the book, or any suggestions you think I might like to see, please feel free to leave a comment here. I'm always interested in what readers have to say.

My next book will be out in the spring of 2010. I had such a huge response to "Protect Your Elderly Parents" that I'm returning to that topic. The spring book will be about talking to your family about some of the really tough subjects such as which legal solutions need to be put into place for ageing parents. I am constantly being asked about how to bring up these difficult conversations and how to hold a family meeting that will result in effective legal steps being taken, so I'm addressing it in that new book.

SE Calgary News interview now online

My interview with SE Calgary News is now online. We talked about issues arising from my first book, "Protect Your Elderly Parents". There is also a written story accompanying the video clip.

http://www.secalgarynews.com/index.php?s=butler

Does your aging parent need a guardian?

In this post, I am discussing guardianship of an ageing parent as opposed to trusteeship. The difference is that guardianship deals with personal and health issues and trusteeship deals with finances. In a future post I will talk more about how to tell if your parent needs a trustee.

The terms "guardianship" and "trusteeship" here refer to legal roles appointed by the court. If your parent has a valid Personal Directive and Enduring Power of Attorney in place, there is usually no need for anyone to be appointed by the court. However, if your parent hasn't prepared those papers, you may find that your parent needs protection and assistance and that you or someone else must be appointed by the court to provide that protection and assistance.

Your ageing parent might need a guardian to assist with personal and health care decisions if he or she:
- is unable to safely prepare meals for himself or herself, leaves pots and pans on the stove to boil dry, repeatedly scalds himself or herself with hot water, starts kitchen fires, or has problems remembering how to carry out other daily tasks that used to be familiar;
- becomes disoriented when he or she leaves home, forgets his or her address or forgets how to get home;
- fails to recognize people he or she has known for a long time;
- is unable to maintain personal hygiene on his or her own (e.g. bathing, toileting, dental care, grooming) or is unaware that hygiene is a problem;
- is unable to manage a condition or illness on his or her own, forgets to take essential medication or treatment, or because of memory loss, takes too much medication;
- is unable to safely transfer from a wheelchair to bed, toilet etc on his or her own;
- neglects medical or dental appointments, does not know how to make appointements, or is unable to get to appointments on his or her own;
- forgets to shop for food, toiletries, and other essentials or is physically unable to shop for essentials on his or her own;
- is unable to maintain his or her home in a safe, hygienic manner, neglects to repair broken windows or appliances, hoards items (e.g. newspapers) to the point that they become a hazard, fails to take out garbage regularly, or neglects to clean up after pets;
- often puts things in the wrong place, such as putting the telephone in the refrigerator;
- is experiencing more and more memory loss;
- has undergone noticeable personality changes or has become unpredictable; and/or
- would not be able to get out of the house quickly on his or her own in the event of fire.

These behaviours can be seen in many elderly people who are beginning to lose their mental competence. However, unless you are a doctor, it's not easy to understand what these behaviours mean or why they are occurring. By consulting with your ageing relative's doctor, you may be able to understand what is happening, and predict the kind of care your relative will need now and in the future. Keep in mind that the level of assistance needed may well change over time.

As a cautionary note, try not to jump to conclusions about an elderly relative's capacity. There could be medical explanations other than lack of capacity for isolated symptoms. For example, sometimes a person giving inappropriate answers to questions is confused and forgetful and this might be a symptom of incapacity. However, it is also possible that the person is perfectly in control of his or her faculties but is giving inappropriate answers because he or she is hard of hearing and doesn't have his or her hearing aid.

This is exactly what happened to a client of mine in his nineties who was taken to the hospital by ambulance and had no chance to grab his hearing aid on the way out. He couldn't hear the questions properly and his answers didn't match the questions he was being asked. It was taken as a sign that he was losing his mental abilities, though it was later shown in court that he was not.

The issue of identifying mental incapacity for the purposes of court-appointed guardianship (and what to do about it once it's identified) is discussed in much more detail in my book "Protect Your Elderly Parents".

My book has sold out!

A would-be reader of my first book, "Protect Your Elderly Parents", told me that he could not find a copy of my book anywhere in Edmonton. I quickly checked several stores that I knew were carrying it, and he's right - it is sold out almost everywhere in Alberta.

First of all, thanks to everyone who is buying and using this book. It was a labour of love for me and I appreciate your acceptance of it.

Secondly, those of you who don't have a copy yet can still get one. Use the link on the left-hand side of this blog underneath the picture of my book, which will take you directly to the Self-Counsel Press website, where you can order a copy online. You can also order online at http://www.chapters.ca/.

The book applies to all provinces and territories except Quebec so it's being carried in Chapters stores across the country. You can call any Chapters store and ask them to bring in a copy for you. This also applies to independent bookstores such as Audrey's on Jasper Avenue in Edmonton, which will also order the book for you.

My second book is currently at the publisher in the process of being edited. It will be on store shelves in a matter of months and I will be sure to let you know when it's available. And - this is so exciting - the publisher and I have agreed in principle to a third book which will be published next year!

If you ever want to discuss anything you've read in my book or that you'd like to see in an upcoming book, please post here and I'll be glad to chat with you about it.

How to use a court order that appoints you as a trustee for an adult

Most people who are appointed by the courts as a trustee for an adult person enlist the help of a lawyer to make the court application and get the Order that appoints them. This is commonly done where a parent is losing mental capacity and has not prepared an Enduring Power of Attorney. But once you've got the court Order in place, are you confident that you know how to use the Order properly? Here are some tips for getting started as a court-ordered trustee:

1. File the Order at the court. If you used a lawyer, this will be done as part of the service you pay for.

2. Read the Order to find out when it comes into effect. If no date is specifically stated on the Order, you can assume it comes into effect on the day the judge signed it.

3. Read the Order to find out if there are any deadlines you have to meet, such as dates for renewing your application or reporting to the court about your activities as trustee.

4. Serve copies of the Order on anyone who is by law entitled to be served. Again, if you used a lawyer this might have been done. Make sure you ask whether the lawyer has done this.

5. In many parts of Canada, a newly-appointed trustee has to file an inventory of the assets and liabilities of the person for whom they are acting as trustee. There is usually a 6-month period allowed for this to be done.

6. Talk to each place of business at which you will be representing the person for whom you act as trustee. The places of business might include banks, investment houses, property tax departments, Canada Revenue Agency, land titles office etc. Find out whether you have to give them a notarial copy (stamped by a notary public) or a certified copy (stamped by a clerk of the court) of the Order that appoints you. Never give any of them the original court Order.

7. Read the provincial or territorial act that governs your Order so that you know what you are supposed to do, and what you are not supposed to do. Many well-intentioned trustees get into legal trouble by accidentally exceeding their legal authority.

8. Set up your record-keeping in a way that you can and will sustain over a long period of time.

These tips are summarized from Chapter 14 of my book called "Protect Your Elderly Parents", which gives quite a bit of detail of each of these steps. The book explains how to set up your record keeping and reconcile your accounts. It tells you who needs to be served with copies of the Order in each province and territory. It shows you exactly how to set up your inventory, what to include and how to arrive at the right monetary values.

Even if you have used a lawyer to get your court Order, a book like this one gives you plenty of help understanding what to do once the lawyer's part of the work is complete and you are on your own to act as trustee.

Answering your questions

There are two comments attached to one of my earlier posts in which a reader asks about two people acting as Attorneys under a Power of Attorney (POA). A particular issue that you are dealing with is whether or not to sell your mother's house, now that your mother is living in an assisted-living facility.

It's not uncommon for people making POAs to name more than one person to act. When they do so, every decision made by the Attorneys must be jointly made, as they share both the rights and the responsibilities of the role. A parent thinking of appointing more than one of their children to this role should think it through carefully. In an ideal world, everyone would get along all the time, but that is rarely a reality.

In looking at your specific situation, I would start by examining the POA itself. Does it place any restrictions on the kind of actions that the Attorneys can take? Does it include any provisions for resolving a dispute? It's unfortunate, but many POAs that are currently in use are much too simplistic and don't contain enough guidance for the Attorneys trying to use them.

I would next ask about your mother. Specifically, I would want to know whether your mother is still able to give meaningful input into decisions. Obviously your mother is experiencing mental incapacity, as the POA would not be in use otherwise. But this doesn't necessarily mean that she is completely unable to form and express a reasonable opinion. If she is able to do that, the you should try to work with her input. If your mother is unable to participate in the decision-making at present, has she ever expressed wishes about what she wanted done about her house? Does her Will say anything about her house (e.g. that it be given to a certain individual)?

I am not suggesting that you involve your mother in something that your mother can't understand, or that current factors be ignored in favour of something that your mother might have said years ago. I am suggesting that your mother be invited to participate if she is able to.

My biggest question is that of why one Attorney doesn't want to sell the house. An Attorney's job is to act in the best financial interests of the donor of the document (in this case, your mother). The Attorney is not entitled to hold onto a valuable asset like a house for sentimental reasons or for reasons of personal financial gain. Every Attorney is required to make the best of the donor's assets. In most cases this means selling a house that is no longer used and investing the money for the benefit of the donor.

Is there a solid reason for the refusal? Is she under the impression that your mother may one day return to live in the house again? If so, consult with your mother's doctor to get a realistic picture of whether this is likely to happen.

Is the Attorney living there herself and concerned about finding other accommodation? Is there a tenant who is causing a problem about leaving? Is the Attorney concerned about the housing market and suggesting that the sale be postponed to maximize the price you could get?

Of utmost importance is the question of whether your mother needs the house to be sold so that she can use the money to support herself in her assisted-living facility. If so, this is the primary consideration no matter what else is going on.

You can see that there may be a good reason for the refusal, and if there is, the Attorneys have to work together to resolve the issue. If there is no good reason, or the reason is for the Attorney's own personal gain, this is not acceptable.

You mentioned that the Public Trustee might end up being involved, and this is not an uncommon solution where Attorneys simply can't agree. Depending on your mother's assets, you might find a trust company to be another good (neutral) party to take over as Attorney.

Before giving up on the joint Attorneyship, you might try to fix it, and I get the impression that you are motivated to do this. You might benefit from using a mediator who can help with the decision-making. An estate-planning lawyer or family lawyer could help you find a mediator. If you decide to use a lawyer, it would be a good idea for both of you to go together. Often, when one person hires a lawyer, the other person sees it as a declaration of war, so be careful about how this is handled.

I wish you the very best of luck. Looking after elderly parents is rarely easy, either physically or emotionally.

Global TV Edmonton - The early news with Lynda Steele!

Hi everyone,

Thanks for all the questions, I'll try my best to answer them shortly! I've been super busy doing all these media interviews but it's definitely well worth my time if I can help others help themselves with regards to elder law.

My interview on Global TV with Lynda Steele was an amazing experience and I'm a huge fan of hers!

Here's a link to the clip, just in case you missed it on the early news.

Global TV Edmonton & Protect Your Elderly Parents

Watch for me on Global TV

Tomorrow I'll be taping a special segment with Lynda Steele of Global TV. We'll cover several topics arising from "Protect Your Elderly Parents", including how to begin the difficult conversation about estate planning. Hope you'll be watching!

Essential estate planning documents

Today on CityTV, Ryan and Wendy asked me about the bare miniumum that people should have in terms of estate planning documents. I replied that everyone should have a Will, Enduring Power of Attorney and Personal Directive prepared by a lawyer with a specialty in estate planning.

A Will appoints somebody, known as your executor, to look after your estate when you pass away. The executor handles funeral arrangements, finds your original Will and reads it to understand your instructions, finds out what bills need to be paid, makes an inventory of everything you own, arranges with a lawyer to apply for probate, sells property, gets an accountant to prepare tax returns, sets up any trusts you direct in your Will, gives the beneficiaries the gifts directed in the Will, and dozens of other tasks.

People often mistakenly think that the executor named in their Will can also look after things if the Will-maker is alive but is losing mental capacity. This is simply incorrect. A Will has no effect at all until you have passed away, so it does not give anyone any legal authority to deal with your assets while you are alive.

Our population is aging. These days, people live longer. Living longer, however, doesn't necessarily mean that you are living your entire life with your full mental capacity. To deal with potential incapacity, you should prepare an Enduring Power of Attorney and a Personal Directive. Without these documents you might not have anyone with the legal authority to act as guardians for minor children, run your business, or pay your bills.

An Enduring Power of Attorney (EPA) is a document that you sign while you are healthy that names someone to look after things if you should lose your capacity. It deals only with property and finances (not health care). It's incorrect to think that EPAs only need to be signed by older people. Any one of us could have an accident leading to incapacity at any time. EPAs are usually signed by people in their 40s and older.

A Personal Directive (PD) is a document that you sign ahead of time that names someone to make health care and personal decisions for you if you are unable to do that for yourself. It's not the same as a Living Will because it includes more and covers more than a Living Will does.

All three of these documents are intended to make sure that your wishes are carried out in the long term when you cannot do that yourself. In the short term, they will bring you peace of mind, knowing that you've protected yourself, your family and your assets as much as possible.