All About Estates

Could There Have Been A Different Outcome?

Case Example 1:   John,  was a 93 year old, well -to -do gentleman, never married  and had no known family.   He lived in his own home in a nice part of the city.  His next door neighbor had kept an eye out and assisted him over the years by shoveling his walkway and offering to get groceries for him on an occasional basis.  John had a ‘Friend’ who he met while playing Bingo. The ‘Friend’ spent more and more time at the house and soon appeared to be living at the house with John.  A short time thereafter, his neighbour noticed that  there were contractors at John’s house.  He went over to talk with John and the ‘Friend’ answered  the door and said that John was sleeping. The neighbour noticed a new roof, new windows and a fancy new car in driveway.  The bank noticed large withdrawals from his checking account and his  financial advisor started to receive emails signed by John (although John never sent an email previously) asking that  large sums of money be transferred out of his account .

Q: What could his neighbour have done? What could his bank have done?   If there was a signed Power Of Attorney for  both Property and Personal Care held at the bank, could this have been avoided?

Case Example 2:  Frank was a 85 year old widower, estranged from his two sons.  He lived on a large property in the country. He always kept to himself and was largely independent.  After his wife died, he did engage a trust company to act as his Attorney for Property.  No one was named as Attorney for Personal Care.   After some troubling calls from Frank to his bank,   the trust officer called a community care manager to assess how he was doing and ensure his health and care needs were being well met.   Frank’s care needs continued to increase to a point at which 24 hour care was required.  His behaviours escalated and he started to have violent outbursts.  His caregivers began to fear for their safety.  After a subsequent fall, he was admitted to hospital and was found not be capable of making his own treatment decisions. At the point that he was ready to be discharged, the hospital did not feel he was safe to return home. He was subsequently referred to the OPGT and subsequently sent to live in a Long Term Care facility.  The bank was not in a position to make health care decisions on his behalf.

In this scenario, the financial institution had its hands tied as there was no Attorney for Personal Care to make health care decisions on Frank’s behalf.  While Frank may have had the necessary funds to live in a setting other than LTC or may have preferred to remain at home or live in a dementia specific retirement residence, this did not occur.  If there was a signed Power Of Attorney for Personal Care, could this have been avoided?

Note: both of these situations are fictitious.

There have been two recent papers  discussing prevention of financial abuse amongst seniors including the Ontario Securities Commission “Seniors Strategy”   and the  Report on Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence and Diminished Mental Capacity   by the Canadian Foundation for the Advancement of Investor Rights (“FAIR Canada”).

They both make excellent and similar recommendations regarding steps to develop best practices to safeguard vulnerable seniors from financial abuse.   However, neither organization recommends that an Attorney for Personal Care be designated at the same time an Attorney for Property is named.

Just asking…..

About Audrey Miller
Email: amiller@eldercaring.ca About: Audrey Miller, Managing Director of Elder Caring Inc. has over 25 years social work and rehabilitation experience working with older individuals and their families. She advises the financial, insurance, legal and business communities regarding elder care issues. Audrey is a recognized expert in her field.

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