Season

1

• Episode

5 Incapacity Planning

Erin McNamara

Owner of McNamara Law Services

A graduate of Queen’s Law, Erin McNamara is the Principal of McNamara Law Services, a legal practice with a focus on estate law, including the preparation of wills, powers of attorney, testamentary trusts including Henson Trusts, and probate applications. All of her services are 100% mobile and virtual.

Erin is also an adjunct professor at the University of Ottawa, Faculty of Law, where she teaches Wills and the Law of Succession. In recent years, Erin has co-authored legal papers and has been a speaker at the annual East Region Solicitors Conference. As well, Erin regularly presents legal topics at speaking engagements and provides estate planning seminars to a variety of groups including clients, non-profit groups, lawyers, and other professionals. Erin has served on the Board of Directors for REACH Canada, a non-profit organization that benefits persons with disabilities in Ottawa and continues to be involved with their community initiatives. In her spare time, Erin enjoys performing in interactive mystery theatre with Murder Mystery Ottawa.

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[0:00] Welcome to Artful aging with your host Amy are you a senior or a caregiver of a.
Looking for support and Direction best selling author educator and expert in Senior Living Amy Friesen is here.
With the help you need while providing you with an important and valuable support network so now please welcome the host of Artful aging Amy Friesen.

[0:31] Good morning everyone I'm Amy Friesen and this is Artful aging with Amy.
We are live from Bold Brave TV and on today's show we're going to talk about in capacity planning what it is how do you do it.
Our Guest today is Aaron McNamara who is the owner of McNamara Law Services and she specializes in a state law and wills and Ontario.
Aaron is also a professor at the University of Ottawa which is local to here.
Where she teaches wills and law succession and she also has co-authored legal papers and provides estate planning seminars welcome Aaron thanks for joining us good morning thank you great to be here.

[1:12] Now in my experience many seniors do not have proper documents in place nor do they really know what they need.
On top of that many families get a not-so-good surprise when they need to step in and help their loved one.

[1:28] But the proper paperwork isn't in place.
I've also had the situation come up more times than not that someone that had a low has a loved one that has dementia and now they figure out the power of attorney has not been activated and the dementia is getting worse and worse.
And so the senior that has dementia is refusing to move and I've had to tell many clients that they need to get a capacity assessment done just this morning.
We've had this situation again and actually we've had it about 3 to 4 times this month alone so our team at tea and toast finds it all the time throughout our advisors it's.
It's not a terrific situation in fact it's a terrible situation so Aaron can we start today by looking at
what does capacity mean and is it different for property versus personal care.
Sure yeah and capacity is one of those things that there is a legal definition but it means different things to different people so let's start with the property so so
capacity to be able to manage one's own property means that the person needs to understand the nature of their property so the nature of their assets you know.
What a bank account is the fact that they might have credit cards or you know it's different for everyone but.
Really just in general terms an understanding of how their property works and what it is so you know like values all of that kind of thing.

[2:55] For personal care it's really just the ability to take
care of your person so the ability to make informed Health Care decisions
care of oneself so personal hygiene you know decisions that that are in your own best interest as far as medications surgeries just Healthcare in general living conditions that kind of thing so
the property side just deals with
finances and things and money and the personal care side deals with anything to do with the person so it's a little bit different for each but those are the general.
Guidelines around that.
And just for a you know a tidbit on to what I do because obviously you know what I know about 10 toes but just so I know also I believe that housing like retirement living comes under Finance is that where it comes under a personal.

[3:46] Yeah it's a bit of both to be honest it because it touches on both so
let's assume that someone has documents in place I know we're going to kind of get into those documents in a little bit but let's assume that
someone else has the authority to make decisions for someone else regarding their finances and their personal care when it comes time for them to go into long-term care if they're if that's in fact an option then it's sort of both intersect because
the personal care so I'd has to actually make the decision to say you know what,
this family member is needs to be in care they need you know 24 hour care or they need certain you know memory care or whatever the case may be and the property attorney let's say or the person managing the property they have to
pay the bills for that they have to budget for that so the two really do intersect sometimes it's the same person which could be easier or more difficult depending on the situation but in any case those two worlds kind of come together to make,
that happen.
Okay thanks for that yet because obviously we deal with it all the time and so in my experience we work with families all the time again the person this morning as well.
Who refused to accept that they have diminished capacity so what's a family to do at that point.

[5:01] Unfortunately I hear this more and more I get calls sometimes from people just kind of desperate not not knowing what to do because it really is a gray area
you know often when clients come to me and they're setting up these documents everything's great you know everyone has of course capacity and it's you know these are just documents put in place as an emergency but then when the day comes it's really difficult to draw that line and say okay now.
Now they're active you know and and,
as you may know this Amy part of the unfortunate you know development of Dementia or Alzheimer's or any of those related illnesses is a
a denial of that state so often families are really frustrated because.
The family member won't admit it or they just can't they're in denial and you know they're angry about their diminished capacity that kind of thing so what I tell people is,
here are your options you can you know
talk to the person and see if they'll allow you to help them you know depending on how you present it they may allow you to kind of step in and start making decisions
or failing that if they're really you know digging their heels in and they're not
allowing you to be involved at all then your only option may be to get a capacity assessment and if they refuse to do that you may have to go through the court to
do that channel to get an order there's a capacity assessment board that may need to be involved to put that in place.

[6:29] That's unfortunate but sometimes it's the only option especially if the person's health or welfare is at stake you know that may be the only option.
Sometimes we deal with clients to that the PO is not active and the person's refusing and it there there
home everything is just to show the world their proper nutrition and all that stuff sometimes the answer to that some of our families have gotten to is to get them to hospital sometimes because.
Everything's at a whack including their meds their nutrition.
Everything so just to even get them aligned again and then move them from there to the retirement living or a long-term care which is what some of our families have had to do.
No you just you talked about capacity assessment can you let us know what that is.

[7:14] Sure so sometimes an official assessment is needed for the person to accept help or you know for perhaps a guardianship application
you know that which is a which is a core process so sometimes those assessments are needed a formal assessment and for those situations there's two options the first option is someone can go through their physician and their physician through the mental health Act
may be able to provide that assessment where they're basically declaring that the person has capacity to continue making decisions for themselves or they don't have capacity
to do that and then there's options that come from that decision the other option for capacity assessment our actual capacity assessors I always recommend this because
they're Specialists they have expertise in these areas they have significant experience dealing with seniors and also.

[8:06] They kind of know the nuances of you know time of day and medication and
different things that may affect capacity so they're able to sort of see that whole picture and determine whether there's capacity and typically they're quite extensive meetings and what comes from it is a really thorough assessment which,
is it my opinion about the best option if someone is going to challenge it for example the person saying I have capacity yet there's a full report that states why maybe there is not.
You know capacity found so I feel like those reports are much better not to say that the physician ones aren't good but.

[8:45] They're really official and as I said they have expertise in those areas.
So now we obviously deal with this a lot too and it's you know what I'm actually finding more often than not is that the family doctor doesn't like have a lot of knowledge around.
Dementia care and things like that so just happenstance it's not all doctors but there have been families and so to get them to do it is sometimes hard because they don't know how like they don't have experience it or they don't recognize it or whatnot so
going to someone that's actually a capacity assessor to do that I think is also a great option Aaron can a person with a disability make a power of attorney.

[9:25] The short answer is yes depending on the disability and an interesting thing to note is that for capacity it's different with the power of attorney stories different with property then it is with personal care so for example
if someone is not able to manage their property they may still be able to manage their personal care so if there's different levels of capacity so depending on the disability as long as they understand their property as I mentioned earlier and understand the nature of it
or if not on the personal care side if they're able to care for themselves and you know make those Healthcare.
Decisions that are good and in their best interest then they may have capacity even though they have a disability so it will just depend on the scenario.

[10:10] Okay like always right it's always depending on each person individually so so now because we've touched on both types of power of attorney or POA for sure let's talk about the difference between two and let's start with property if we could
what does appeal way for property like what is it and what powers does it give to someone okay
that's great question so a power of attorney for property is a document that someone signs where they're giving authority to someone else to make decisions for them
in the event that they're unable to make those decisions
so property deals with anything Financial so we're talking about bill payments banking tax returns
canceling a gym membership changing your cell phone plan anything at all to do with money that's in the person's life is covered by that document so you know.

[11:07] It could be anything now as far as the
the well there's different types of those documents there's different types of powers of attorney for property but in general terms it's the ability to make any decision for that person the only thing
literally the only thing the person cannot do is make a will for the person who has lost their capacity
so once you make a will if you then lose capacity you can never change it so no one else can change it on your behalf so that's the property one.
Interesting and that falls in my let's plan it feel right I've always but I've also been told Whispers of the retirement industry that there's a difference between a bank POA and a general POA is that right.
That's right yep,
so Bank Pia ways are literally done at the bank so they the branches have their own and the purpose of that is so that someone else can come in often a family member or an adult child is very common and they can come in and do their banking just
paying just for those accounts so it's very specific and limited to that a general power of attorney or POA
is for everything so as I mentioned gym membership tax returns banking all of that has captured under that same umbrella and its General so you know it's not
it's not limited necessarily to just that one bank for example the to you.

[12:33] They were together do you have to I've also been told that the bank you have to do a bank POA as well like is that a thing or is that just some banks yeah thanks
you don't have to so I sometimes hear that too and it's a little concerning because there's no rule to do that definitely and really if the person's power of attorney
for property General one is drafted properly and witness properly and all that that should suffice like that that will that's a much more robust
document and the bank one was as I said is very limited so that General one takes the place of the bank one like you don't need the bank one with the general one.
Now sometimes people may just want you know their son or daughter too.
Have power at that bank and then they want someone else to have everything else in that case the bank one might be.
A good idea because it's giving that one person that ability to do the banking but nothing else and that's why I said they can work together but as far as them being required.
They're not required so you know if a Banks insisting on that maybe they have an internal policy but really the general one is a much more it's a much larger scope so I would recommend having that one in place.
Perfect to like as
we're in Ontario if we have an Ontario power of attorney is it valid in other provinces or other countries.

[13:58] You know what I'm going to answer that it depends well the reason I say that is because it can be.

[14:07] So yeah I mean it depends there's different guidelines around it but if it complies with the rules of the country or the location where the person is they're trying to use the Ontario one then.
Technically speaking it's valid but whether it's accepted at the counter by someone that's another story unfortunately it's not always the case so.
Fair enough okay so we'll continue this chat and a minute after the break Aaron and I are going to be speaking about joint bank accounts what are the pros and cons you don't want to miss it
I'm your host Amy and this is Artful aging with Amy here live on Bold Brave TV we'll be right back.

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Personal information power of attorney info and real estate is just a fraction of the information you can store in this fillable planner and Record Keeper.
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[15:07] Welcome back to Artful aging with Amy where we've been discussing Powers of Attorney specifically POA for property.

[15:15] Now Aaron and I have a lot of people tell me about their loved ones.
POA is not active but they are joint account holders on their parents account and I want to talk about that in just a second but something we were discussing on the break is.
Where did folks find capacity assessors could you just let us know where they might look.
Sure yeah there are private assessors but there's also a roster connected to the courts the interior courts so if you go onto if you Google capacity assessors Ontario you should have that link as one of the first links.
And basically it's a roster connected through the court and you can put in your area like where you live and then it'll show all the
approved assessors and there's a standards that they have to meet so it's very consistent approach to capacity assessment and I always recommend going that route and also you know as I said there's different areas so you can find someone
directly in your area that is convenient for your loved one because often travel is an issue as well so and and many of them make house calls to so that's a good start
to get to get a good name perfect perfect okay so let's bounce back to the bank for just a second so
is it better to add someone as a joint account holder versus having a POA for property what are the pros and cons that were looking at there.

[16:38] So the pro is.

[16:40] You know they can go in next day and start doing Banking and there's no issue typically like that you know it's the bank account is accessible as if it.
It is their own it was going to say as if it was their own but it is their own once they're joined so that's really convenience is probably the biggest one but there are a few Pros that
in my opinion really outweigh that option whenever clients ask me should I just add my daughter to my account or my son or whatever I always say a resounding no because what happens is even though it might seem like a good idea because it's convenient
um once that account is joint with.

[17:18] Son or daughter with whomever that's their asset now to right so they're sharing that asset of course because they have full access to it so if they have a marriage breakdown if someone Sue's them if they have a tax,
you know Bill that they can't pay all of those scenarios are situations where those assets are at risk now because they're their assets to right so let's say for example there's a marriage breakdown and and the.
The spouse is trying to get half of that asset.
Technically speaking it's their have to take so it could be really problematic so I always tell people look it's not worth the risk don't put your finances your house every anything at risk better to have a power of attorney because that way the person has
all these sweeping Powers anyway the power of attorney document gives someone in the authority to make decisions on your behalf as if they are you so
they have full access to everything so in my opinion that's a better way to go yeah it sounds extra messy the other way and and
just kind of again seeing it through my clients eyes they don't need any more mess at the end of the day like at there's a lot of things you're figuring out at this point so
yeah I agree with that as well what are a spouses or family members rights to manage property if there is no power of attorney in place.

[18:40] So this is a another unfortunate situation that happens sometimes it's too late to do a power of attorney where the person you know needs help but they can't
they don't have capacity to sign one anymore and those scenarios if they are joined with
espouse let's say a joint account or whatever then the Spells has full access to continue,
operating that account because they're already on it but if there's a soul
and the person has lost capacity their spouse cannot do anything without a power of attorney
document so the only solution for them is to actually bring a guardianship application to court
and this can apply to even you know non spouses like family members that need help but they don't have a power of attorney you know someone suddenly has a terrible accident and they're in a coma like unexpected the their young let's say.

[19:32] There's no power of attorney maybe guardianship is the only option same thing for a disabled relative for example someone that.
Um you know it was maybe a new adult was a child so the parents were able to manage their money all up until they're 18 but now they're having pushed back from various agencies they would have to get a guardianship application
so that is an option but if you can do a power of attorney it's much better it's more efficient it's less costly you're not waiting for a court date you're not going in front of a judge having to prove why you're your
you know an appropriate choice because there's a lot of power that the courts giving you by awarding this guardianship so it's a very long extensive application as it should be but the easier way is to be proactive and do the document yourself.
And then my uncle who it is as well.

[20:23] For sure and generally how long does that document take that I don't know if I missed it when you're saying it but like is it is there an average amount of time.
You mean for the like for the guardianship yeah for the guardianship because you said it's a long process is there like an average amount of time that it does take because I think a lot of people.
Feel like this type of paperwork is is is going to be easier or quicker
and so they put it off right and so you know on the alternate on the other end is this guardianship issue and you know that might be a lot more involved time consuming or whatnot but I'm just curious kind of in comparison really.
Well the power of attorney for property will take you like normally for my clients I do it with Wills so I could do the whole package and typically that whole process usually takes like.
Anywhere from
let's say four weeks to eight weeks typically for a client from start to finish so I mean the document itself it's you know within a couple months you have it or last depending you know but for the guardianship
you've got to put together an application apply seek seek time in court
to go in front of a judge as I said and have your application looked at I it depends on really the court scheduling and availability but
on average what I'm hearing is at least a year.

[21:48] Even like nine months to a year or something like that and with covid now who knows right it's just like there's diminished opportunities although everything's on Zoom now so you know it's a bit different but it's a lot longer and it's.
You can do your own like you can do your own.
You know application but often it is tricky and complex so people do turn to legal help and that's typically like it can get can get up there and legal expenses so not ideal it's not the best option.
And also that person that's trying to get the guardianship is also increases with their people right like whatever is happening they're involved too so it's not going to be.

[22:27] But just before we leave for the break can you I don't know if you can sum this up quickly or not but you would mention continuing versus springing POA can you give us like a just a quick.
Quick definition so continuing POA means that you can use it throughout different.
Times so you might use it for convenience at first where you have capacity but you're asking the person to go do your banking for you and then you put it back in storage and you do it again and then maybe you lose capacity down the road
that same POA can continue on so you can use that same dock.

[22:58] And then the springing one is really just if you lose capacity then it becomes valid so and the continued one is valid right away typically so.
That's really helpful yeah I didn't even know those terms so that's amazing thanks for that so we're going to continue this right after the break I'm finding today's discussion very interesting I hope that you are getting something as well from it coming up on Artful aging with Aaron
with Amy and Aaron we're going to continue this conversation and have a look of power of attorneys for personal care we'll see you in a minute.

[23:32] Hello again welcome back and Today's Show we've been talking about Powers of Attorney what they are and how do they work so let's go and look at the power of attorney
POA for personal care Aaron what is a POA for personal care what powers does it give someone.
It is a document that gives someone the authority to make decisions about your person so individual medical decisions consent to treatment anything to do with your medical or personal needs is covered by that document.

[24:05] Okay how does it generally like how does it work practically
and when is it valid or active because there's a again with what we do for work as well is there's a lot of Gray Zone people don't understand Powers of Attorney and when to put it into place and stuff so when is it actually valid and active.
So unlike.
The property one where as I mentioned before the break you can you don't have to lose capacity for it to be active A continuing one typically starts right away and so if it's convenient you can give it to someone to go.
You know sign something at the accountants office and bring it back and you're fine if you know if you can't get out the personal care one is completely different in that it's actually not active unless you lose capacity to care for yourself.
So there's been an assessment or the doctor has stepped in or the person has agreed to let someone take over and they need someone to help make those decisions so it's not really active unless it's needed and often you know.
There are cases obviously many people that don't ever need them so in those cases it just never becomes a.

[25:09] That's a tough one to especially again if you're dealing with someone that has cognitive issues right it's you know you don't want to step on toes but you know so and so is not.
Keeping up with their personal appearance or something like that so again capacity assessment but it's a tough call when to get that that's what a lot of our clients deal with.
Is a power of attorney for personal care also valid in other provinces and countries.
Yeah the same thing would apply you know if it's valid.
According to their standards and the same thing is really for a while as well like all these related documents if they're acceptable according to the standards of where of that person is then that's that's fine it will be accepted.
Again there's usually push back because they don't they're not familiar with the forms Etc.
When I know people are going to be spending significant amount of time outside of Ontario I always recommend look next time you're there I'll give you a snowboard or whatever just get a POA done there.
Why a lawyer there because
they know their forms there's different formats and it's just going to be much easier if they're needed with very little hassle or sort of barriers to getting those those those people in place to make those decisions.

[26:21] Okay fair enough let's let's take a look at living wills Aaron can you explain to our viewers what a living will is is it binding.

[26:32] Yeah that's a great question and I think there's a lot of myths around a living will and what it is really it's just another word for advanced or another to two words for advanced directives so basically a living will is an expression of someone's wishes.
In the event that
they are being cared for under this power of attorney for personal care and they develop some sort of condition where there's really no recovery there's maybe diminishing health.
And really they're they've become reliant on Extraordinary Measures how do they want that person to proceed
to make their decisions for them so it could be you know if I'm in that state I want to be removed from life support and allowed to you know.

[27:10] Pass away if that's the result with no pay and Etc you know they can sort of add things to it or you might say look I want to be kept alive at all costs you know
maybe there's some new things happening in science I don't want to be removed from life support so people have different views on it.
But the bottom line is it's not binding because you can't really compel someone to take that step ahead of time for you because we really don't know what the situation is going to be so it's really just.
Your wishes and what I tell clients is although it doesn't have legal teeth it can't be enforced necessarily.
If you know what you want if you know that you want to be removed from you no Extraordinary Measures for example in my mind it's a really kind thing to do because your loved one.
Is it necessarily making that decision on their own there it's more it's not really my decision I'm just honoring mom's wishes kind of thing so in that sense I think it has a really important role If someone knows what they want.

[28:11] It's a good idea to include it absolutely I agree as well it's really tough on family to make those decisions well in crisis as well because.
Consider all of your POA folks I'll you know all of your family they're going to be right there with you right so something that comes up.
From time to time with our clients at Tian toast is that
they have separate POS for property and personal care and so what if the attorney for property refuses to pay for care.

[28:41] Yeah these conflicts do arise sometimes when it's different people of course and so really right in the substitute decisions act it does state that
if there's a conflict the
well it can go to mediation if there's really a conflict in the can't move forward that's right in the legislation that mediation will be
it will proceed and then the conflict will be resolved but
really the guide line around the power of attorney for properties so that the person acting under that document their guideline is to always consider the person's personal care
when they're making those financial decisions so they're supposed to look at the whole picture and say is this the best.
Facility for you know my my you know family member
because it's 10 hours North and no one can go see this person so like those are the kinds of things that they're supposed to consider when making those decisions on you know care basically you're supposed to consider that the personal care side of things too.
For sure supposed to consider as well right like it's just so many family conflicts and things like that but.

[29:51] We've been chatting about a lot of heavy things but super necessary I would like to wrap up with you with you know can you tell me what your number one thing for anyone watching is right like know what's your number one thing to do.
Honestly
be prepared you know get your Affairs I don't think get your Affairs in order because that's always a sort of daunting phrase but you know make sure you're prepared you know it's really for your loved ones to be able to navigate through this
you know have a will in place of course but that's another topic but you know for personal care and power of attorney for property it's super important to have those it's proactive you're picking the person that you want to make decisions for you you know it's not left.

[30:32] Or guardianship applications or anything so the best thing you can do is get those
documents in place and then you have peace of mind and hopefully you never need them but if you do need them they're there and you don't need to your family doesn't need to scramble and it's if there's enough stress going on in those situations this will sort of minimize that in my opinion.
Sure that's that's my opinion to right plan for sure well Aaron it's been terrific having you with us today thank you so much for joining us.
For more information on Aaron
you can head over to Artful aging with a me.com and her bios there and I'll link to the website again thanks Aaron thanks very much for taking some time.
Thank you so much it's been a pleasure thanks Amy.
After the break I'm going to sum up my top tips for today grab a coffee or a tea join me back in two minutes you've been watching Artful aging with Amy here live on Bold Brave TV.

[31:30] Welcome back thanks for joining me today
there was a lot of information covered today conversations with loved ones over topics like this are often difficult
or non-existent in many families I can definitely tell you that a lot of our clients again at ten toes have a lot of these issues and so I was just telling Aaron before she left us that
I was going to forward this to a lot of our clients because it's very very pertinent information.

[31:58] Many families are really caught off guard when the time comes that they need these documents and their love for their loved one it often speaks up and it's often in crisis where an adult child learns that not all the documents are in place.
And sometimes it's too late to activate them as you heard with Aaron.
And so instead of you know surprising your loved one at the end of the day again plan plan plan,
if you are a loved one or a situation where the documents are not up to date or not done reach out to Erin or if you're not in Ontario find someone you're a local area have a conversation.
Be informed of what your choices are don't just assume things will fall together or you'll wait it out a lot of people tend to wait for crisis but crisis is often too late.

[32:45] So my top tips for today.
Number one get a POA for both property and personal care in place don't leave it to the last minute you never know what's going to happen.
And also remember that Aaron said to advance directives or a living will or very important as well and having your will in place I know we didn't cover those too much today but all of these pieces of paperwork
need to be in place so that someone can help make your decisions
for you as the best that they can and again it kind of takes it takes the pressure off the family if you can get these in place.

[33:21] As Aaron said earlier organize your financial life plan it out so someone can step in as easy as possible
remember the person you want to handle your Affairs is most likely in the crisis with you it's going to be your adult child or your spouse or a close family member you don't just give your power of attorney to some random person and so consider
that they're going to be in crisis with you and they still going to be living in operating their own life so give them a break a little bit.
Number three make your wishes known for both POA and property of care many adult children are worried about making the wrong decision
for their loved one so help take the load off your family by telling your adult children or your PO is what you would like and make their life easier I'm going to say mother and father wink wink.

[34:11] So there you have it on next week's show we're going to be speaking about dementia care strategies over the holidays.
What to look for in the holiday season if your loved one is on their senior living Journey with dementia I would like sorry I would.
If you could take a minute to like us on the platform that you're listening or watching us on give us a thumbs up give us some comments.
Spread the love of Artful aging with Amy so that other families can find this information to make their life a little bit easier because there's a lot of families struggling.
And feeling isolated.

[34:47] Thank you so much for joining me today on our plate Jean with a me again would live on Bold Brave TV every Wednesday from me to all of you I hope you have a wonderful win.

[34:59] You've been listening to Artful aging with host femi many folks just like you feel they're alone in their journey and helping a loved one or.
So tune in each week and let a me show you that help is around the corner and it's just one conversation away here on Artful age.

Season

1

•

Episode

5

Incapacity Planning

Erin McNamara

Owner of McNamara Law Services

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Transcript