A colleague recently mentioned that he and his siblings were shocked when his mom suffered a stroke without warning. One minute, she was an active 70-year-old in good health, and the next, he and his siblings were suddenly responsible for her care and finances. His mother had signed Power of Attorney (POA) documents, but the enactment of those directions and the unequal representation of the siblings started a long list of conflicts among them.

Best practice for estate planning professionals is to create a schedule of tasks for clients, including wills, POA documents for personal care and for property, as well as regular reviews. While those scheduled lists may “tick the box” for having POA documents in place, the grantors often do not anticipate or review the practicalities of who, when, and how to carry out the responsibilities.

In the scenario above, although the mother had her POA documents in place, the son learned that he and his brother were jointly responsible for managing her finances. In practical terms, jointly meant that every cheque written, every cash withdrawal, and every financial decision and action required both his and his brother’s signature. The brothers live in different provinces, so it became onerous to co-sign everything. Additionally, it was revealed that his brother had substantial student loan debt from his mother that he had never repaid. And the older sister was a bank executive who was considered “the financial expert” in the family, yet she was puzzled as to why her mother did not appoint her as an Attorney for Property. The two sisters were appointed the attorneys for personal care (jointly).

Frequently in our practice, we have observed gender imbalance with POA appointments. It seems that traditional approaches and societal norms are underpinning the practice of the daughter being given the caregiver role and the son looking after finances and property, even though their skills and abilities may not match those roles. [1]

Does the research data support this observation? The data does support the view that traditionally, women predominantly are the caregivers for the elderly.

Worldwide, nearly 70% to 80% of the impaired elderly are cared for at home by their family members[5–7,9,11,17–20]. Varying estimates across different countries indicate that 57% to 81% of all caregivers of the elderly are women[1,6–8,10,12–14,17–26]. In most cases female caregivers are wives or adult daughters of the elderly person. They are usually middle-aged, with a considerable proportion of them being over 65 years themselves. They are also more likely to be employed outside home than in the past[7,17,19,27]. The elderly recipients of care are either frail or chronically physically ill; the majority, however, have dementia or other forms of mental illnesses[7]. [2]

There does not appear to be research data on gender imbalance in Power of Attorney documents in Canada. With no centralized registry of POA documents, it would be difficult to review the data. Perhaps this will change with the creation of online registries. In the meantime, we rely on practice observations.

From a planning perspective, clients would be well served if there were an advance discussion of the practicalities of executing their POAs and the responsibilities they are placing on their attorneys. For example, who has the best skill set in your family to act as your attorney for care, and how can you enable that person to do the best possible job for you? An adult child could well be spending on average another 5 hours per day, in addition to their employment, caring for an elderly parent. Will you compensate the attorney for ongoing expenses? For example, transportation expenses for getting to and from doctors’ and clinic appointments each week, grocery and meal expenses, and pharmacy expenses such as medication and briefs, to name a few.

Typically, a POA for Personal Care does not include compensation or expenses for the attorney unless this is specifically stated; however, there is acknowledged compensation for Attorneys for Property under the Substitute Decisions Act, Section 40. Combined with the gender imbalance described above, payment for expenses and, in some cases, extraordinary time can be the root cause of conflict.

Another common example of conflict between a daughter acting as the Attorney for Personal Care and the son acting as the Attorney for Property erupts over accommodation choices. The story often goes like this – 90+ yr old mother has advancing dementia and requires memory care. She has substantial resources to afford private care, and the daughter is exhausted caring for mom every day in her home. She chooses a few memory care retirement homes in her neighbourhood so she can visit her mom frequently. The brother refuses to consider the Retirement Home option, deeming it “too expensive,” and says it is his job to “preserve the inheritance.” His view is that the mother should go to a Long-Term Care facility as it is cheaper, even though waiting lists could be years long.

In summary, our practice experience over the past decade demonstrates that conflict can be related to gender imbalance with the POA roles and responsibilities. To reduce the potential for conflict, it is helpful to discuss with the grantor how the duties will realistically be carried out so they understand the obligations they are placing on the person they choose to make decisions for them if they cannot.

[1] https://caremakers.ca/uncategorized-en/the-gender-gap-in-family-caregiving/#:~:text=Men%20are%20more%20likely%20to,per%20year%20than%20male%20caregivers

[2] Sharma N, Chakrabarti S, Grover S. Gender differences in caregiving among family – caregivers of people with mental illnesses. World J Psychiatry. 2016 Mar 22;6(1):7-17. doi: 10.5498/wjp.v6.i1.7. PMID: 27014594; PMCID: PMC4804270.