I’ve had some heartbreaking conversations with clients about Powers of Attorney – or rather, the lack of one. One of these conversations was with Trudy* and Nick* who had been married for over twenty years. Almost five years ago when he was just 55, Nick, was diagnosed with early onset Alzheimer’s. At the time, Trudy said they were so overwhelmed with the diagnosis that they couldn’t bring themselves to see a lawyer to do their Wills and Powers of Attorney. After a few years, Nick’s condition deteriorated to the point where he just didn’t have the mental capacity required to sign any documents. Sadly, it was already too late when I met him.
Trudy recently contacted me about doing her own Will and Powers of Attorney. She mentioned in passing that she was thinking that she and Nick might move to Kelowna, to be closer to their grown children and to have other family around to help with Nick’s increasing need for care. Trudy said that most of their savings were tied up in their family home which they owned jointly. Trudy was hoping to buy something more modest and all on one level so that Nick wouldn’t have to manage the stairs.
Unfortunately, I had to tell Trudy that because Nick hadn’t signed a Power of Attorney for Property, she could not sell or even mortgage their house. Instead, she would be forced to go to Court and ask to become Nick’s guardian for property – a process which could take six months or more and cost thousands of dollars.
Trudy was deeply shocked. She had thought, as Nick’s legal spouse, that she’d be able to manage joint assets for the benefit of them both. I explained that even if the Court granted her guardianship request, she would be accountable for Nick’s assets to the Public Guardian and Trustee for the rest of Nick’s life. She would have to keep detailed records about everything that she paid for with Nick’s money. She would have to present her records to the Court (called a passing of accounts), a process which is time consuming, costly and frustrating. How often Trudy would have to do a passing of accounts would depend upon the guardianship order and could range from annually to every second or third year for the rest of Nick’s life.
If Nick had signed a Power of Attorney for Property, among other things Trudy would be able to:
- Save thousands of dollars that must now be spent to become Nick’s guardian of property,
- Save time and money as she could sell the house without delay and be able to deal with other assets whether or not she and Nick own them jointly or individually, and,
- Save thousands of dollars over a number of years as no passings of accounts would be necessary.
Everyone who is 18 or over should have a valid Power of Attorney for Property as well as a Will. Acting now will save your loved ones time, money and a lot of frustration later. Call us to arrange an appointment if you would like to have a Power of Attorney prepared. If you think you may need to apply for guardianship or if you are already a guardian of property, we can help. Call us at 613-836-9915 or send an email to us at [email protected].
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.