Powers of Attorney, Guardianship & Substitute Decision Makers (3 min)

Kenneth Pope speaks about the importance of having an adult child with a disability sign a powers of attorney arrangement, allowing you to assist them with their property and personal care.

Web:
https://kpopelaw.com/

Email:
kpope@kpopeplanning.com

Phone:
1-866-536-7673

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Video Transcript:

If you have an adult child or family member with disabilities or special needs one of the things you should consider is whether they have signed powers of attorney of property and personal care so that you can assist them with these matters.

Now it may well be that the child is capable, because it's not simply a hard strict test of capacity it's fact specific. A person is considered to be competent until proven otherwise. So if it's possible at all they should sign powers of attorney so that you can actually as an adult assist them with their own affairs, otherwise what will happen of course is that doctors and others will say, oh no we can't talk to you because of the privacy legislation, which is true.

Now if the child is not capable, then on the far end of the spectrum then what you're looking at is legal guardianship, which is an application to the court for guardianship of person and property; but of course there's usually two capacity assessments, there's fees for that, there's some minor court and public guardian filing fees, there's legal fees. So you may or may not decide that this is the route you want to take, but what we find is that quite often the issue is whether the child will be properly treated medically and if they are whether the doctors and hospitals will speak to you the parent or the brother and sister, which typically if there's a question as to competence then doctors and hospitals err on the side of privacy because they have to and they won't tell you anything. Now as a child you may find that they cooperate but as an adult that all changes.

Now it is possible to have a halfway house and that is that under the substitute decisions Act there's a tree, a hierarchy of who is in fact the substitute decision-maker for an incapable family member and initially it's the parents but of course it's a difficult often to say to a doctor or hospital oh well I'm the parent I'm the substitute decision-maker. So what we do is we prepare a substitute decision maker package, which involves affidavits from you, copies of the act, a legal opinion letter, certain other material and this can then be presented and left on file with doctors and hospitals because you are under these circumstances the substitute decision-maker. It just needs to be acknowledged so that you have cooperation and more peace of mind.

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