All About Estates

Appointing a Continuing Power of Attorney for Property to Family vs. Statutory Guardianship; which is truly better?

Most seniors appoint a continuing power of attorney for property (CPOAP) for the sole purpose of not wanting the Office of the Public Guardian and Trustee (PG&T) to assume statutory guardianship of property under the Substitute Decisions Act (SDA) or Mental Health Act (MHA) should the person become incapable. The majority appoint a family member who they assume they can trust. But is this always the best outcome? Can one anticipate the potential conflicts of interest within families when it comes to management of their property?

Financial elder abuse may involve the improper use of a legal authority, such as a CPOAP, by use of a senior’s money and assets for purposes other than for the benefit of the senior. Individuals managing property for others have a fiduciary duty. The concept of fiduciary duty is intended to protect vulnerable persons who must rely upon their advisors. Fiduciary duty is based on principles of good faith for situations in which trust and confidence is placed in one party by another with the expectation that the fiduciary will act in accordance with that trust. An attorney for property for a senior is a fiduciary whose powers and duties must be exercised and performed diligently, with honesty, integrity and in good faith for the senior’s benefit and not for the attorney’s personal interest.

In my clinical experience this is not always the case. A recent example is an elderly man with mild dementia, passive-dependent personality and depression who claims chronic emotional abuse on the part of his wife. He presents to the hospital following an unsuccessful suicide attempt. He suffers executive dysfunction such that he cannot plan to care for himself independently in the community. His wife is his appointed attorney for property and care. The team recommends that they separate for fear that the chronic emotionally abusive environment may lead to a recurrent suicide attempt, even though he denies suicidal ideation. The patient acknowledges that he is reliant on his wife to manage his property and he will accept any decision she makes. She tells the team that she is taking him home and promises to behave better. However the team speculates that she does not wish to spend their money for him to move to a retirement home. She is very articulate, is clearly capable to make decisions and argues that being with her is in his best interests, both financially and for health. The adult children hold no authority and no influence over their mother and the patient is discharged home to her care.

In this situation without a CPAOP, there would’ve been the opportunity to deem him incapable of managing property under the MHA and the PG&T would have assumed statutory guardianship of property. With his testimony of emotional abuse perhaps the PG&T would have facilitated him obtaining legal advice to separate and divorce which he appeared wishing to consider initially but was unable to orchestrate independently.

In consultation with one of our hospital ethicists, we did not feel we could intervene by facilitating legal advice for the patient. Marital discord would not qualify as neglect. It appeared that the patient, despite his marital unhappiness, was not mentally well enough to act independently and thus was stuck in the marital situation and persistently vulnerable to the control of his emotionally abusive wife because he had made her something more powerful than a spouse, he had appointed her as continuing attorney for property!

This reminded me of the 1972 rock classic, ‘Stuck in the Middle with You’ by Stealers Wheel; perhaps prophetic of problems to be encountered with a CPOAP and family conflict:

Well, I don’t know why I came here tonight
I got the feeling that something ain’t right
I’m so scared in case I fall off my chair,
And I’m wondering how I’ll get down those stairs

Clowns to the left of me, jokers to the right,
Here I am, stuck in the middle with you

Yes, I’m stuck in the middle with you,
And I’m wondering what it is I should do
It’s so hard to keep this smile from my face,
Losing control, and I’m all over the place

Clowns to the left of me, jokers to the right,
Here I am, stuck in the middle with you

Well, you started off with nothing,
And you’re proud that you’re a self-made man
And your friends they all come crawling,
Slap you on the back and say,
Please, please

Trying to make some sense of it all,
But I can see it makes no sense at all

Here I am, stuck in the middle with you.

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

1 Comment

  1. Peter

    July 7, 2017 - 7:54 pm

    Our government should have a department to help the people who are not able to deal with there assets. No more Power of attorney and Will as these documents give power to people to steal the other people’s assets. Especially, these docouments now are processed by lawyers who get paid of being do it.

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