On the last podcast, Alzheimer’s What they Forget to tell you – episode 51, we spoke about Power of Attorneys and the Office of the Public Guardian and Trustee. It is important to put things in place not only for individuals that are aging, but for anyone with assets.
There is a huge difference between the two. What is a Power of Attorney? A Power of Attorney is a legal document that gives someone else the right to make decisions on your behalf. There are three types of Power of attorney: A continuing power of attorney gives the person that you name the ability to cover your financial affairs for you even if you become mentally incapable.
A non continuing power of attorney covers you financial affairs but cannot be used if you become mentally incapable. This is typically done if you need someone to look after your financial transactions if you travel for extended periods of time.
A Power of Attorney for Personal Care covers your your personal decision such as health care and housing.
In Ontario, the law does not use the term living will, they use the term advance directive. You can write your treatment wishes as an advanced directive as part of your Power of Attorney for Personal Care, so that your lawyer is aware of them. An advance directive addresses treatment and personal care wishes, and is not required to name anyone, or written in any particular way.
A Power of Attorney is not a will. A Power of Attorney only applies to while you are alive and ends upon your death. Your Last Will and Testament covers the distribution of your property after you die and only takes place upon your death.
Power of Attorney’s are not registered with the government. You will have to file a Power of Attorney to every institution or agency that you deal with and you want the other person to manage.
If you do not have a Power of Attorney and you are unable to manage your affairs yourself, a family member has the right to make your health care decisions or apply to become your guardian of property. A close friend could also apply to make these decisions for you. The Office of the Public Guardian and Trustee acts in situations where it is legally required and where there are no other suitable person available, willing or able.
The law does not require you to use a lawyer’s service to create a power of attorney, if the document is signed and witnessed and you had the legal capacity to give the power of attorney, no other steps need to be taken for it to be legally biding. The POA must be witnessed by two individuals that are not spouse or children. The Attorney General’s Office or the Office of the Public Guardian and Trustee do not keep a record of Power of Attorneys.
In some cases, there may be some policy reasons, particularly at financial institutions your POA may not be accepted. In order to protect from fraud, banks have strict policies around accepting POA’s which is why if you have a lot of assets, it is probably best that you get a lawyer to draft your POA and ensure that you file them with every agency that you deal with.
As a Power of Attorney for an individual with Dementia, this means, everyone. Revenue Canada, any private insurance that the person may have, banks, Local Health Integration Network, Private agencies. I have been asked by anyone that I speak on behalf of my mom for the Power of Attorney.
Which brings me to the other topic that we discussed in the Podcast- the role of the Office of the Public Guardian and Trust. The Office of the Public Guardian and Trustee (“OPGT”) provides services that safeguard the legal, personal and financial interests of certain private individuals and estates. The OPGT will manage the financial affairs of incapable people when there is no one else AUTHORIZED to do so. They make all the financial decisions, conduct transactions that these individuals would handle themselves, including depositing income, making investments, maintaining and selling property, applying for benefits, filing tax returns paying bills and acting in legal proceedings if required.
The OPGT is authorized to appoint a client’s relative to act in its place. The proposed guardian must submit an application which includes a detailed plan to show that the incapable person’s finances will be handled. In certain cases, The proposed guardian may be required to post a surety bond.
It only makes sense, not just for people that are aging, but for anyone. Cindy (who had to go through the OPGT office said it took her over a year and a half in order for her to become her father’s guardian). She also said that her father had no assets. The question was. What if there were assets? I believe if there was a substantial amount of assets it may have taken longer for the process of guardianship. It is just like if you happen to pass intestate (die without a will)
According to the Ontario Succession Law Reform Act, if you die intestate, it means you have not left any instructions on how you want your property to be divided. Therefore your property will be distributed as follows:
If you have a spouse and no children- your spouse inherits everything. this only applies to legally married spouses. Common law spouses do not automatically get anything if you die without a will.
If you have a spouse and children, your spouse takes up to $200,000 worth of assets anything else is called the residue (how rude) If anything is left over it is divided between your spouse and your children- if there is only one child- your spouse and child receive half of the residue of the estate, if there is more that one child, your spouse received on third of the residue and the children share the remainder equally.
If you have children but no spouse, the children inherit equal portions of your estate. If you have no spouse or no children, your parents inherit your entire estate. If you have no spouse, no children and no parents, your brothers and sisters or their children divide your estate. If you have no nieces or nephew, all other next of kin divide your estate. If you have no living next of kin, your estate goes to the Ontario Government.
Dying without a will creates problems for those that are left behind, because your property will have to be divided according to the law and maybe not how you wanted it. The process is long and there will be expenses involved in wrapping up your affairs. The court will appoint someone to be your representative, and the rule is that it is your closest relative.
The Office of the Public Guardian and Trustee (2016) Powers of Attorney, Queens Printer for Ontario, Canada.
The Office of the Public Guardian and Trustee (2016) The Role of the Office of the Public Guardian and Trustee Queens Printer for Ontario, Canada.