The Notary Group

The Notary Group

The Notary Group

We are members of the Society of Notaries Public of British Columbia. The Notary Group is the trade name for Janzen & Caisley Notary Corp., a Professional Notary Corporation. The information on this blog is just that – information – if you need legal advice, please contact us: info@thenotarygroup.ca, or www.thenotarygroup.ca.

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What happens when you leave it too late?

November 27, 2013 , , , ,

by Linda Caisley

As a capable adult, you are in charge of your own financial, personal and health care affairs. You are the boss. Unfortunately, most of us over 65 will live with at least one long-term health condition1 at the end of our lives, and in some cases, those illnesses will consume the last 10-20 years of our lives. Almost all of us will need someone else to help us manage our affairs at some point.

Many people think their spouse and children will simply make decisions for them, or sign legal papers for them if they can’t. But this isn’t the way it works.

Your spouse, child, siblings or friends do not have the ability to sign for you, or to make important decisions for you simply because they are related to you, or because you said they could.

This bears repeating: even if you own all of your assets jointly with another person (including your spouse), that person still does not have the right to sign for you.

Joint tenancy only tells us what to do with your property on your death ‒ it doesn’t give the other person the right to sign for you while you are still alive.

There are simply too many situations where friends and family members don’t agree about who has the right to speak for you, or they have different ideas about your care than you do. So who does your doctor or banker listen to in these situations:

  • your new spouse of 6 months wants to make a decision to withdraw life support, but your children from your first marriage believe you will recover
  • your estranged child goes into the bank to ask for signing authority over your account because she is your only daughter
  • your spouse, who is suffering from dementia, wants the bank to close out your joint account, or spends all of the money in the account
  • your children do not like your new spouse, and they can’t agree about how your cancer should be treated
  • your family does not agree with your religion, and makes it clear that they will do everything in their power to subvert it
  • you’ve had a devastating stroke, and your son wants you to sell your home so you can afford to move into a care home, but you are no longer “of sound mind”

Sadly, none of these scenarios are rare. Others can only help you if you have made:

  • a power of attorney: appointing someone to help you with your legal and financial affairs while you are alive
  • a representation agreement: appointing someone to help you with your personal and health care needs while you are alive
  • a Will: appointing someone to deal with your funeral, sort out your financial affairs, pay your last taxes and distribute your estate after you have died

Many people put off dealing with these issues because they don’t want to face their own mortality, or because they have a challenging family situation and aren’t sure how to deal with it. Your notary has seen many of these situations before, and can help you work through some scenarios that might ease your mind.

If you chose not to appoint someone to help you with your affairs, two things could happen:

  • your financial affairs could be frozen, and you (or your family) could incur significant costs in getting the necessary legal permissions to handle your affairs
  • your health care professionals will make the important personal and health care decisions for you, and your family could find themselves paying for your care from their own funds, not yours

The only way your family members can be authorized to help you is by going to court, and asking a judge to declare you incapable, and let them act as your guardian. This process is time-consuming and expensive, and when you are declared incapable by a judge (which is different and more serious than a doctor declaring you to be incapable), you lose your legal right to act on your own behalf.

The simpler and less expensive way to solve this problem is to appoint a family member under a Will, Power of Attorney or Representation Agreement. In the end, it’s your choice ‒ your chosen friends or family members help you because you have given them the power they need, or the judge and health care professionals decide for you instead. Contact us for information on how to make these simple but powerful documents, and keep control of your affairs exactly where you want it. Visit our website for contact information.

1Statistics Canada Survey: Chronic health conditions among senior women and men living in a private household, by age group, Canada, 2009, Table 10.

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