Thoughts of a Common Man

With the seniors population living longer and with many individuals requiring more specialized social and personal care it is very important every senior become aware of the many legal implications that can arise should a crisis arise involving their issuing a Power of Attorney for their protection.

As a senior gradually depends on the assistance and support from friends, relatives or a legal advisor he or she should prepare well in advance to give certain amount of authority to that trusted person when it comes to financial and person care matters and know the differences between the different types of Powers of Attorney especially those of financial and personal care.

One of the most commonly used methods of a principal transferring authority to an agent is through issuing a document referred to as Power of Attorney which outlines the issues and conditions under which a designated person or company can take action on behalf of someone who needs assistance or no longer is capable of looking after his or her own well being.

Before issuing such a document in writing the principal must decide the scope of the authority to be transferred to the agent and ensure that authority is fully understood by the agent selected as to what is being asked. It should be under stood the agent acts in good faith for the benefit of the principal and not for his or her own benefit unless the compensating benefits are described in the Power of Attorney document. By doing so will prevent what is according to the Canadian Center for Elder Studies one of the fastest growing areas of crime in Canada, Power of Attorney fraud, in many cases the duties and responsibilities under a Power of Attorney are very poorly understood and involves many seniors across this country.

Because the social structure of the average Canadian family has changed, many seniors now live in locations where they no longer have day to day contact with family members and have to depend on close friends or sometimes legal advisors for assistance to live a life when the administration of their financial or person care needs are beyond their capabilities. Thus it is very important to know by turning over authority to others that authority can lead to fraud and possibly abuse if arrangements are not properly made for the prevention of such an adverse situation.

A senior must also be aware that just because the agent is a close family member or good friend, will not necessarily ensure there will be no fraud or abuse. A great example of how conflict of issues can take place was in Nova Scotia where a brother kidnapped an ill sister, transported her to another country (legal jurisdiction) so he would have control of her affairs rather than her husband who had the legal right as per the decision by Nova Scotia supreme court. After a lengthy court battle in that other country the sister has been returned to Nova Scotia safely to her husband.

Regardless of how well a senior prepares, he or she must be aware that if they move from one province to another, the arrangements made in one province may not be binding in the other. Presently there is no agreement in Canada that recognizes Power of Attorney agreements in the various legal jurisdictions. At this time neither the province of New Brunswick nor the government of Canada have taken very much action towards recognizing the 35 internationally accepted measures (Hague Convention on the International Protection of Adults, January 2000) which could be used to determine which jurisdiction has authority to take steps to protect the person or property of adult who is not in a position to protect his or her interests.

It is good policy to prepare a Power of Attorney well in advance and discuss the written document with those close to you along with the person who will act as the agent (and alternate agent) but do not sign or date the document until that point it time when you feel it should to take affect. The reason behind delaying signing the document is due to the fact your signature may immediately activate the conditions in the document giving the agent authority over your affairs at an inappropriate time unless specifically stipulated.

Another method of delaying the activation of Power of Attorney as suggested by legal council, a special cause could be included to have the principal’s physician submit a document citing the principal has lost the capacity to attend to his or her personal business or personal care. Only by presenting the physician’s certificate can the agent activate the Power of Attorney and all it’s clauses.

By doing your research and preparing a well informed Power of Attorney document and selecting an agent along with an alternate agent to act on your behalf, you can ensure your safety, security; comfort and welfare for those years when unpredictable circumstances may arise that prevents you from looking after yourself.

Regardless of how hard one works to protect their life and assets always remember there are also always those who are continually trying to find new ways to defraud people of their assets and their way of life while being cognizant those trying to take advantage of you will not always be strangers to you. Therefore, with all your information, always be prepared to review your document and make the necessary adjustments that will make you feel safe and secure for a time when you will get all the assistance you need appropriately.