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.

Can a parent appoint a guardian for an incapacitated adult child?

Parents of incapacitated children don't always realize that once their children become adults, the parents no longer have legal authority to act on behalf of their children. Depending on financial and other circumstances, the parents most often have to take steps to have themselves or another person named as legal guardians and trustees for child. Click here to read a short article about this by Rania Combs, a lawyer in Texas.

It's important to realize that the parents themselves can't appoint anyone. Only a judge can do that. The parents can apply themselves to become the guardians and trustees. They should also name an alternate person who can take over the job when the parents have passed away or lost capacity.

Basics of BC committeeship

In this blog post, Rule of Law (by lawyer Stan Rule), explores the concepts and logistics behind committeeship - which in other provinces is called adult guardianship. Anyone in BC who is considering taking steps to be appointed as a committee for an aging parent should check out the article, by clicking here.

When is a doctor's opinion on capacity required?

Lawyers who work in Wills and Estates are trained to test their clients for testamentary capacity, or the ability to understand and make a will. But we're not medical doctors. Sometimes the legal and the medical overlap and we need input from doctors about our clients. In this post I'll briefly touch on some of the situations in which lawyers will need or want a doctor's opinion of a client's mental capacity.

1.  At the time a will is signed:

Individuals must have the ability to understand the nature and effect of a will. Lawyers are careful to document their opinion of this ability at the time a will is signed. Mental capacity can be impaired by dementia, medications or illness, so those will be considered if they are present.

Lawyers don't request a doctor's opinion every time a will is signed, nor should they. However, there are times when the lawyer suspects ahead of time that the will of an elderly person might be opposed by someone in the family, and should strategically strengthen the client's case by getting a doctor's letter. Wills are often attacked on the basis that the testator didn't know what he or she was doing and the parties then have to try to reconstruct whether the testator had capacity at the time or not.

If, after the testator's death, the will is backed up by a memo from the lawyer and a letter from the doctor, both made on the day the will was signed and both saying that the testator did know what he or she was doing, the will is in a much stronger position.

This is usually easy to arrange because the client simply makes an appointment with his or her family doctor.

I don't know of any set form for the doctor to use. I've always requested a letter that the doctor can word any way he or she wants to, as long as it addresses the issue of capacity on a certain day. Most doctors have not charged my clients for this service, though I imagine that practice varies quite a bit.

2.  At the time a springing Power of Attorney or Health Care Directive is activated:

A Continuing (Enduring) Power of Attorney and a Health Care Directive are usually made while the donor is mentally healthy and set aside until they are needed, in other words when the donor loses mental capacity. The document will state who has to sign a declaration to activate it. The usual provision is that one doctor or two doctors must sign declarations, which must then be attched to the document itself. Once those declarations are attached, the person named under the Power of Attorney or Health Care Directive can start working on behalf of the donor.

The doctor has to examine the donor to make this declaration, which can be a problem if the donor isn't co-operative. And let's face it, not everyone is happy about having their decision-making rights taken away from them at any given point.

The declarations are usually very brief forms - not more than a paragraph - that simply contain a statement that the donor is not able to deal with his or her finances or medical decisions.

3.  At the time someone is applying to be the guardian and/or trustee for an adult:

An adult is presumed to be able to look after his or her own affairs unless it's proven otherwise. Therefore, when someone is applying to be the guardian and/or trustee for an adult, that person has to bring the court evidence that the adult's capacity is diminished. The evidence is given in the form of a medical doctor's assessment. In some jurisdictions, the assessment can be done by others as well, such as registered nurses and occupational therapists.

Again, there can be a problem with co-operation. Unlike the person who voluntarily signed a Power of Attorney and knew that one day the person might have to take over, a person who will have a guardian or trustee hasn't signed anything. They haven't usually agreed to anything.

The forms needed for an assessment for guardianship or trusteeship are set out in the legislation that applies in each province and territory. In many cases, it's a very lengthy, detailed document. Doctors and other caregivers will usually charge a fee for providing the assessment.

4.  When the court orders a capacity assessment:

Sometimes there is litigation in which the person's capacity is essential to the court's decision. For example, I once had a client in his mid 90s who was hospitalized for a broken bone. A social worker became concerned about releasing the fellow because he lived on his own. The hospital refused to release him until a guardian was appointed and this made it to court. We took the position that because he is as competent as the next person, he should be free to leave the hospital and live alone. The court wanted the opinion of a doctor. We won, but in the meantime my client had to see a geriatric specialist for a full capacity assessment (which he passed with flying colours). The assessment cost about $2,600 at the time, and was comprised of a full report with data and analysis.

Alternatives to court-ordered guardianship and trusteeship for an aging parent

The legislation setting out policy and procedures for becoming a guardian and/or a trustee for aging parents is made provincially, not federally, so it differs across the country. One concept that is present in the legislation of most parts of Canada is that a full guardianship and trusteeship is a last resort. Other, less intrusive, means of helping an aging parent should be tried first, or at least considered.

The idea behind this is that taking away full control of a person's money and life is going overboard. It's like doing a major surgery when all you needed was a few stitches. The amount and type of help offered should be appropriate to the person's specific situation.

Now that we've established that looking at alternative solutions is a good idea, let's look more closely. What exactly are those alternative solutions?

Enduring (Continuing/Durable) Power of Attorney - this document allows a senior to choose the person who will make financial decisions once the senior loses the ability to do that for himself. It enables someone to do all of the things - and more - than someone could with a court appointment as trustee. It's cheaper and quicker, but best of all it allows the senior to exercise control over important decisions.

Health Care (Personal/Medical/Advance) Directive - this document allows the appointed person to make decisions about health care, medical procedures, place of residence and many more matters when the senior can no longer do that. Again, it allows the senior to choose who represents him.

Representation agreements/Supported decision making - under this kind of arrangement, the senior can choose someone to help him or her with decision-making to the extent that he or she wants help. Unlike powers of attorney or health directives, this arrangement enables the person to make decisions with the senior, rather than for the senior. This is available in one form or another in BC, Saskatchewan, Yukon and Alberta.

Informal trusteeship - this refers to an arrangement whereby a person gains legal authority over another person's pension or benefit income, to use those income sources on behalf of the person who owns them. He or she may collect the pensions, deposit them and use them to pay the owner's bills. Informal trusteeship is available for Old Age Security, Canada Pension Plan, Guaranteed Income Supplement, Spouse's Allowance, Survivor's Allowance and Veteran's Affairs benefits. I posted about informal trusteeship once before - click here to read it.

In-Home Support - (sometimes also called Aging in Place support) - this refers to any combination of medical services, housekeeping services, companionship and transportation that allows an aging person to continue living in his or her own house rather than moving to a seniors' residence. If the problems are more severe, medically speaking, the in-home care might have to be a full-time live-in caregiver.

Renovations to the senior's home - making appropriate renovations might make it possible for a senior to stay in his or her home longer, particularly when teamed with in-home support. A variation on this is to renovate the home of one of the senior's children and have the senior move in there.

Custodial bank account - this is a type of account offered at most banks that provides additional services, such as managing the investments, getting the annual tax return filed and paying bills.

Joint assets - those of you who read my blog often know that I'm not generally in favour of placing a senior's assets in joint names with anyone but his or her spouse, but from time to time it's the right solution. Placing assets in joint names gives both people a right of survivorship of the assets, so it should only be used when the senior has an opportunity to talk to a lawyer first.

What does it mean if a Guardian or Trustee for a parent is in a conflict of interest?

The laws governing guardianship and trusteeship of aging parents are provincially made, and vary across the country. Many of them state that a person who wants to be a guardian and/or trustee for another person must not be in a position of conflict with that person. Even where this is not specifically stated in the law, conflict situations can create legal issues and should be avoided.

Being in a position of conflict means that there is something about you or your relationship to the assisted person that could mean that now or at some time in the future, you might have to choose between your duty to the assisted person and your own best interests.

A person in a conflict position is not a good choice as guardian or trustee because it is only human nature to look out for your own interests, whereas the assisted adult needs and deserves someone who will wholeheartedly look out for him or her.

It's important to understand that being in a conflict of interest doesn't necessarily mean that there is a problem existing right now. A person could have no issues at all with the assisted adult right now, but still be in a conflict position if there is potential for conflict in the future. For example: A man owns a farm which he intends to leave equally to all three of his children when he dies. The man has a son who wants to own the farm himself, and who has asked his father a number of times to sell the farm to him. Even though the father and son may get along well otherwise, the son could be in a conflict position in the future if he is made his father's trustee and has to decide whether or not to sell the farm. The conflict arises because the son will have to decide between what his father wants and what he wants.

Some relationships, by their very nature, may put the person in a conflict of interest. For example, a person whose livelihood is earned by providing personal care for a fee should probably not be the one who decides whether the assisted adult should have that kind of personal care. A business partner of the assisted adult may also be in a conflict of interest because if he or she has to choose what is best for the assisted adult, this may not be what is good for the business.

Some relationships are specifically mentioned in the law as NOT automatically giving rise to a conflict of interest. For example, simply being a family member of the assisted adult does not automatically mean that you are in a conflict position. It is possible, of course, for a family member to be in a conflict position but the family relationship alone is not enough to cause it.  For example, a woman might have lent her son $50,000 expecting him to pay it back when he is able to. Just the fact that he is her son doesn't put him in a conflict position should he become trustee. However, the fact that he owes her a significant amount of money is a potential conflict. His best interest (not repaying the money) would be in direct conflict with her best interest (repaying the money).

If your family is thinking about who would be a good guardian or trustee for your parent, you should think carefully about how your life and that of your siblings interconnects with your parent's life to determine whether someone's personal interests could create a conflict.

(This post is excerpted from my book, Protect Your Elderly Parents)

Planning ahead can ease the process of adult guardianship

I'm attaching an article here that talks about a non-profit group in Texas that acts as legal guardian and trustee for adults who need that help, when appointed by the courts. I don't know of any Canadian equivalent. What do you think of this concept? In Canada, if you haven't planned ahead for your own mental capacity, the courts will likely appoint a family member or friend to represent you. If you don't have anyone who is able and willing to take this on, the remaining options are a trust company (for financial, but not health/medical/personal, decisions) or the Public Trustee and Public Guardian.

I completely agree with the author's comments that people should plan ahead. Most estate-planning lawyers consider planning for incapacity to be just as important as planning for passing away, and will encourage clients to prepare all needed documents.

Have you made legal guardianship arrangements for your disabled child?

When the parents of a disabled child think about estate planning, they of course consider the options open to them for Will planning. We'll get to those in a separate post, but in the meantime, the parents may also need to take some important steps that will take effect while they are still alive.

The first consideration is guardianship. I use this term as separate from trusteeship, or the custodianship of money. A guardian is someone who will look after where the disabled child lives, with whom the child lives, whether the child works on a paid or volunteer basis, and guides the child's daily life challenges such as grooming, transportation, education and entertainment.

Many parents reading the previous paragraph will dismiss it by thinking "we already do that for our child". It's possible that an informal arrangement works just fine for now. But what happens when you pass away? If your child is of the age of majority when you pass away, you can't appoint a guardian in your Will. You can do something about this while you are alive, if you wish to, but you cannot control it through your Will.

What if you should lose your mental capacity due to injury, illness or aging? Who will be making decisions for your child if you are having trouble making decisions for yourself? Would you like to have some input into who is put in charge of your child if you're not able to do it?

While your disabled child is a minor, there is no need for a guardian to be appointed, as the parents are automatically the child's guardians. Once the child reaches adulthood, however, it is a different matter. Adults are, in law, presumed to be competent to handle their own financial and non-financial affairs unless it is proved to a court of law that they are not. Therefore, as a parent, you may not have access to information or any control over decisions for your child once the child reaches the age of majority. This is where adult guardianship comes in.

In many cases, the disabled child doesn't have much in the way of assets while his or her parents are alive. Often the only asset that needs looking after is a monthly government benefit. If this is the case, it can be expensive and time-consuming to appoint a trustee who isn't really needed. However, a guardian to help with non-financial decisions most likely is needed.

In almost all provinces and territories, guardians may be appointed separately from trustees, so you can have a guardian appointed without going to the expense and trouble of having a trustee appointed. If you are the parents of a disabled child, you can both be joint guardians, but be sure to appoint a sibling or friend of the child as an alternate guardian for when both parents have passed away.

Make sure your estate planning includes a review of any and all steps you can take now to set matters up securely for your disabled child's future.

Will I have to manage my parents' finances?

Ted Rechtshaffen discusses steps you can take now to ease the transition into looking after your aging parent's finances, particularly when the one who handled the finances has passed away. Click here to read this article in today's Globe and Mail.

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.

Fewer options as capacity diminishes

It's a myth that estate planning is only for the elderly. Over the last ten years or so, the majority of my clients have been individuals and couples in their 40s, 50s and 60s. They want to plan early because early planning means that all of their options are open.

In order to make a valid Will, the person signing the Will (the "testator") must have testamentary capacity. This refers to the ability to understand the nature of a Will,and to understand the consequences of the decisions being made when a Will is signed. If you wait too long, you may run out of time, as we don't know which of us will one day be affected by mental incapacity due to an injury or illness. A Will that is made while the testator is suffering from early signs of incapacity is somewhat easier to contest by someone who is disappointed by its contents.

Eventually loss of capacity means that the testator can't make a Will at all. That could mean that an old, out-of-date Will is used, or that there is no Will at all and the estate is distributed according to intestacy law.

Estate planning is about more than getting a Will made. As we talk about frequently on this blog, the other major component of estate planning is putting something in place to deal with possible future mental incapacity. As with making a Will, choices become fewer if you wait too long.

A person who has mental capacity can choose to prepare an Enduring Power of Attorney and Personal (health care) Directive. Once capacity begins to diminish, the need for these documents increases but the ability to make them begins to decrease. In the early stages, it isn't too late to create documents, and the individual can choose between, for example, putting someone fully in charge, and supported decision-making.

In these documents, the individual can name decision-makers of their choice, and can decide limits, controls and guidelines for their representatives. They can give instructions about investment, about giving to charities, and about any financial arrangements involving their adult children.

If the opportunity to sign documents is lost, the options narrow down to the point where the individual loses control of the decisions and other people must step in and ask the court to appoint a trustee and/or adult guardian.

Estate planning is something that you should do well before you think you'll need it.

What happens if the beneficiary of an estate has dementia?

I find it interesting to talk to executors of estates when money or valuables are left to an elderly person who has Alzheimer's disease or other dementia. The executors' attitude is sometimes along the lines that the elderly beneficiary won't know or realize that he or she has inherited something, and certainly won't spend it, so why bother giving it to them. The executor then wonders if the elderly beneficiary's gift should be given to someone else who will appreciate it.

This goes completely against logic for me. The elderly person with dementia that prevents him or her from looking after finances is exactly the person I'd think an executor would want to protect.

I've talked in a few posts about the executor's role and the fact that the executor can't simply decide not to pay an inheritance to a beneficiary for his or her own reasons, so I won't discuss that again right now. I would like to talk about the logistics of paying an inheritance to a person with dementia.

Assuming that the beneficiary is elder and that the existence of dementia is not a question, then there is quite likely someone legally appointed to help with their finances. The first thing to look for is whether anyone under is acting under an Enduring Power of Attorney. If so, the executor can send the beneficiary's inheritance to the person acting under the Power of Attorney, to be looked after on behalf of the beneficiary.

If the elderly person with dementia did not appoint anyone under an Enduring Power of Attorney, and is disabled to the point where he or she cannot deal with an inheritance, then it is highly unlikely that he or she can still sign an Enduring Power of Attorney. In this case, the next option is to have someone appointed by the court to act as legal Trustee for the beneficiary.

Trustees are most often family members, but sometimes it happens that the elderly beneficiary will have no relatives available to do this job. Perhaps the person who left the beneficiary the inheritance in question was the last living relative. In that case, a trust company or the Public Trustee could be appointed by the courts as a trustee. The executor is perfectly within his or her rights to make a telephone call to a trust company or the Public Trustee to ask for help in determining whether he or she should pay the inheritance not to the beneficiary but to a representative for the beneficiary.

Many executors in this situation will take the attitude that going through court-appointed trustees is just too much trouble, and will simply write a cheque and deposit it into the elderly beneficiary's bank account. This solves the issue of moving the money out of the estate and into the hands of the beneficiary. However, it doesn't do anything to protect the elderly person who just inherited the money, either from strangers or from other beneficiaries who are aware that the elderly person now has money but can't manage it due to dementia.

If the executor deposits the money and doesn't have a signed Release from a person acting under an Enduring Power of Attorney or court Order, there is a risk. A beneficiary or family member of the elderly beneficiary may later realize that there was an inheritance, and if the money is no longer in the elderly beneficiary's account (either because it was dissipated or because someone scammed it from the elderly person) then the executor is going to be in a tough position. The executor can be held personally liable for a beneficiary's inheritance if he or she can't prove that it was paid to the proper person.

As an executor, take a cautious approach and ask questions as you go. You should have a legal advisor if you are faced with unusual difficulties such as an incapacitated beneficiary, both to protect the beneficiary and to protect yourself.

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".

Relatives can be paid to provide care for elderly family member

There is an article talking about relatives being paid to look after aging parents or other family members here. Although it is American and focuses a bit on Medicaid, which doesn't apply to us here in Canada, the ideas in the article are still quite good and worth reading. People in general are becoming more accepting of the idea that family membes who devote their time to looking after an elderly relative should be compensated for their efforts, particularly when giving that care prevents them from working elsewhere.

I posted an entry about this topic on this blog not long ago, called "What is a Family Care Contract?". Read that blog post by clicking here. I also talk about it in a bit more detail in my "Estate Planning Through Family Meetings" book.

Does appointing a trustee for an elderly person revoke the elderly person's Will?

The short answer to this question is "no". Appointing a trustee for an adult whose capacity is diminishing and needs help with finances does not revoke the assisted person's existing Will. Since I was asked this question recently at a seminar but didn't get a chance to explain my reasons, I'll expand on that short answer here.

Perhaps the thinking behind the question was that a trustee is only appointed when an individual loses some or all of his or her mental abilities. While a person must have mental capacity to make the Will and sign it, there is no requirement that he or she must continue to have mental capacity up until the moment of death.

To me it wouldn't make sense that a Will be revoked by the appointment of a trustee due to decline of mental abilities. Once capacity is diminished, the individual cannot make a new Will to replace the old, revoked Will, Revocation on trusteeship would mean that every adult who had a trustee appointed would die intestate.

Perhaps the question arose because a trustee is appointed to take charge of all of the individual's assets, income, and debts. To some people this might suggest that the trustee has the final say on who gets what from the individual's estate. Keep in mind though that the authority given to a trustee by a court order (or Power of Attorney) ends the moment the assisted person dies. Therefore the Will doesn't come into play until the moment the trustee loses his or her authority. In fact, the trustee should actually be reading the assisted person's Will to make sure that the executor isn't doing anything to contradict it.

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".

New Adult Guardianship & Trusteeship Act still mostly unknown

Alberta's new Guardianship and Trusteeship Act has been in place for about five months, replacing our old Dependent Adults Act. I'm still getting a lot of questions about whether this new Act simply re-names the old roles and leaves the process intact. It does much more than that. It now allows a variety of assisted decision-making arrangements which can be tailored to meet the specific needs of assisted adults. Not every impairment is the same and different people need different kinds of help.

The new decision-making arrangements now possible to help someone (known as the "assisted adult") make decisions are:

- Supported decision-making: This is the only one of the new arrangements that does not require a court order to be put into place. It's brought about by the assisted adult signing a form. It is appropriate for an assisted adult who still has most of his or her mental capacity but wants support to make certain decisions. Having this form in place does not authorize anyone to decide things for the assisted adult or to speak for them. The helper's role is only one of support. This arrangement is available for personal and health-care decisions and NOT financial decisions.

- Co-decision-making: This is intended for an assisted adult whose ability to make decisions is definitely impaired, but he or she can still make decisions with a lot of help. It fills that niche for assisted adults who need more than supported decision-making, but don't need a full guardianship or trusteeship. It requires the written consent of both the assisted adult and the helper, and is put in place by a court order. It is available for personal and health-care decisions but NOT financial decisions.

- Guardianship: This was available under the old Act but this version is much improved in terms of requiring more thought, planning and accountability by guardians. It requires a court order and appoints someone to make decisions on behalf of an assisted adult, without necessarily any input from that assisted adult. This is also intended for personal and health-care decisions and does not give any authority to deal with money or property.

- Trusteeship: This is still the only arrangement available for assisting an adult with decisions respecting money and property. It requires a court order, and like guardianship, takes the decision-making completely out of the hands of the assisted adult. Trusteeship has additional reporting requirements because it must account for all financial transactions.

The court's view is that the least intrusive solution available is the right one for any given adult. In other words, the court doesn't want to put a guardianship order in place if a co-decision-making order will do. The idea is to continue to allow the assisted adult to maintain independence and control over his or her own affairs as much as possible.

Needs may change over time. Where a supported decision-making arrangement works for someone right now, perhaps in a year or two it might have to be changed to allow for more assistance.

The best way to ensure that you are putting the right arrangement into place is to have an assessment report prepared. The report will make recommendations about the level of decision-making support that is needed.

Wandering registry brings alzheimer's sufferers safely home

The Alzheimer Society of Canada operates a program called Safely Home which is designed to help people who suffer from memory loss get home safely should they become lost. It isn't unusual for Alzheimer's sufferers to become confused and forget their names or addresses, and this could be quite dangerous for them. This registry seems to me to be a fantastic, common sense idea.

Under the program, a person suffering from Alzheimer's disease is registered and gives details such as their physical description and places they visit frequently. A current photograph is kept at the registry as well. When they (or their caregiver on their behalf) register, they are provided with an identification bracelet and identification wallet cards. There is a one-time fee of $35.

The bracelet is engraved with the person's first name and an I.D. number that corresponds with the registry. The bracelet, which looks like a MedicAlert bracelet, also says "Memory Loss. Call Police". Should a wandering person be found, any police service in Canada and the USA can look up the I.D. number on the registry and find out who the lost person is, contact the caregiver or a family member, and take the lost person home.

Should someone wander away from home, the caregiver or a family member can call the police and give the I.D. number so that the police can help to find the lost person.

For more information or to register someone, see the pamphlet called "Safely Home" which is published by the Alzheimer Society of Canada, or see their webpage here.