Q: My elderly widowed mother recently had a downturn in health, cannot manage her financial affairs and is making questionable health decisions. She does not have a will or a power of attorney. My sister, who lives 800 kilometres away, and I want to help her. What can we do?
A: This question illustrates the need to engage in good estate planning. Because your mom doesn’t have anything done, especially a power of attorney, you will have some difficulty helping her unless you get a court order. Unfortunately obtaining such an order requires a lot of work and is expensive, especially when compared to the low cost of doing a power of attorney.
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These orders are controlled provincially and therefore vary, but all have similar characteristics. They are designed to assist an adult who can no longer make personal or financial decisions for herself. The court has a supervisory function to make sure this person is well looked after and does not fall prey to someone who just wants to take all her money.
First, you and your sister will have to decide which of you is going to be your mother’s guardian. While your sister clearly cares about the situation and wants to be involved, the distance makes quick decisions a problem. It may be best for you to be appointed guardian and to keep your sister in the loop by giving her monthly bank statements and reports as to your mother’s welfare.
In most provinces there is a difference between personal and property guardianship. One has to do with someone’s finances, the other with personal and health-care matters. Sometimes an elderly person can manage her personal needs but not finances. Other times, help with both is required. Courts only want to intervene minimally, so ensure you know what your mom can and can’t do before applying.
You will generally need legal assistance in making this application to the court because it is complex. You will need medical reports and opinions from two medical doctors, sometimes a specialist in geriatric medicine.
If there are other family members involved, you will need either their consent to act as guardian, or you will have to give them notice you are applying for an appointment. They have the right to come to court and voice any concerns.
The court will also need an idea of your mother’s financial situation in terms of cash on hand, property owned by her and what her monthly income and expenses are. Finally, the court will want to know whether she has a will or power of attorney done.
If the order for guardianship is granted, it is usually quite detailed in setting out what you can and cannot do. For example, if your mother is still able to live in her house if she gets some assistance, then the order may prevent you from selling her house. Only if her health fails and she has to move out will you be able to seek an amendment to the original court order to allow you to sell her house or land.
If an order is granted, you should get numerous copies because her banks, the government and investment or brokerage businesses will all need to see a copy. Because of privacy laws, all public institutions have to be careful about revealing personal information and will not do so unless authorized by the court. As well, her doctors will need copies for their files so they and their staff know it is permissible to deal with you.
All these institutions and the court expect the adult to be treated with dignity and respect. As guardian, you will be responsible to siblings and to the court for your decisions, both of a personal and financial nature. Stop to ask yourself what Mom would have done if she’d been able to act for herself. Also, ask how you’d like to be treated if you were in her situation.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
