Have you planned appropriately for your senior years?
By Eleni Fakotakis – Kolaitis, Director of SSHQ
Appropriately planning for our senior years is imperative, in order to avoid unnecessary surprises up ahead. Thinking about what we will need, when we start to lose our autonomy is not generally part of our everyday thoughts. Will we want to live independently for as long as possible, with our children or a relative, in a residence, in a retirement community. Which brings to mind, Benjamin Franklin’s famous quote, ‘’An ounce of prevention is worth a pound of cure’’.
Planning appropriately, involves making sure you will have enough money to live a quality life throughout your senior years, making sure your affairs are handled when you do not have time, are out of the country for a while or can no longer do so, thinking about who amongst your family members or friends would be willing and able to help you if you become incapacitated, whether you would like to be in a residence or to live at home with the appropriate assistance if you are ever diagnosed with Alzheimer’s or Parkinson’s disease, specifying what kind of medical treatment and intervention you would accept if you are ever in palliative care, making sure you have appropriately identified your heirs, what kind of a funeral you would like and who will be your liquidator once you pass on to the great beyond. No one enjoys thinking about such things. You do not have to think about it alone though.
I will present to you the differences between Power of Attorney and Mandates For Incapacity. Deciding who to give a Power Of Attorney to or preparing for a Mandate For Incapacity and Estate Planning or Wills do not have to be complicated and overwhelming. Notaries, lawyers and social workers (through public services or privately – which is usually faster) can assist you with all these type of considerations and if your financial situation is weak, there are cheaper alternatives. Keep in mind that a professional will also provide you with valuable advice. You can also obtain a model of such a document on a website of a Quebec-government agency called , Autorité des marchés financiers. You can write it on your own. Note that financial institutions require you to use their own forms.
If you are writing your own Power of Attorney, write as clearly as possible, in your own handwriting, as long as you include the following pertinent items: the date you create the document, the duration that this will be in effect, the powers you are giving, be careful to include the limitations to these powers, how the person will report to you, your name and signature and the name and signature of the person given the powers. Remember that every human being possesses juridical personality and has the full enjoyment of civil rights. We all have the right to a private life, education, to liberty and security, liberty of thought and of conscience, liberty of religion and liberty of gathering with others for something we believe in, etc.
It is important to know the difference between a power of attorney and a mandate for incapacity. A Power Of Attorney is a kind of contract that lets someone act for you even though you are still mentally capable. It lets you name someone to act for you in the situations that you specifically choose (for example: to handle doing your banking, paying your bills or selling a property while you are out of the country for a while, or if you have physical mobility problems preventing you from certain activities that must get done, or help with scheduling problems or if you need regular help due to time constraints to accomplish personal and business affairs). This can be both for short-term and longer term arrangements. A Power of Attorney can be verbal or written. If you would like to avoid abuses, it must be in writing. A Power of Attorney can only be created when you are of sound mind and can still make your own decisions and you can decide to end it anytime. Your power of attorney will have to report back to you, the frequency should be stated in the contract. In some cases a power of attorney and a mandate for incapacity might be in the same document, this is termed a, compound mandate.
If you are declared incapacitated by a court, only a Mandate For Incapacity is useful. At this point a power of attorney is no longer valid. A person is incapacitated when unable to take care of himself or unable to administer his property (art.2166 C.C.Q) If my adult children already have some powers of attorney to conduct my banking or business affairs, if I am temporarily out of the country and at some point, I am suddenly diagnosed with Alzheimer’s and can no longer handle my affairs, a power of attorney will no longer be enough. My children or a family member must obtain a Mandate For Incapacity in order to help me with my money property, my physical well-being and in order to have access to my medical records. Two reports are necessary for homologation: one by a practicing doctor and the other usually by a practicing social worker. Both these reports must conclude that I am legally incapacitated and need protection, this is the first part of the homologation or confirmation of the incapacity. The final step is to have it VERIFIED AND ENFORCED by a judge of the Superior Court or by a Clerk of the Superior Court. Note that private contracts cannot be changed or modified by the court.
The mandate includes instructions to guide the person or substitute persons you have chosen – who will decide for you and how often they will have to report their activities to significant others – if any, the person(s) can be reporting to the Curateur public. This is why one or more alternative people can also be identified. A family member or friend that agrees with you at a given moment, may not be available or capable in the future.
The chosen persons have to be willing to assume this responsibility. Once they agree, they are obliged to carry out the mandate’s responsibilities and special clauses, such as how a disagreement between two designated people can be settled; how expenses are reimbursed, etc. The responsibility involves: shelter, consent of care, will of end of life. You must make a mandate while you are still mentally of sound mind and understand what you are agreeing to and not wait for the system or for others to decide for you. You especially need to do this if you do not have any heirs. However, it is always best to prepare one ahead of time whether you have heirs or not, so that you are not stuck being unhappy with a future situation. You can do this at the same time that you consider your estate planning or your last will and testament. By so doing, you also help in alleviating some of the burden of all these considerations from your family members.
The mandate comes into effect once it is activated or registered , then it becomes legally official. Registration itself does not cost a lot. If a notary, lawyer or social worker prepares a mandate, then their fees are added. All mandates, whether drafted by you (while of sound mind) or by a professional, have to be signed in front of two witnesses who are not related to each other. You sign (if you are of sound mind) and the two witnesses have to sign. The Curateur public du Québec (public curator) also has models of mandates on their website. You can also write one up and go register it yourself.
Incapacity happens generally following a disease, a deficiency due to a stroke, or a serious accident. 36% of elderly persons over 65 years of age have written their mandate in anticipation of incapacity. Over the last 10 years, there has been a rise of 50% in the number of homologated mandates. The mandataries are children of the mandatory in nearly 60% of cases and the spouse or common-law partner in 20% of cases.
SSHQ – the support services of the HCGM, often offer information sessions on the subject of acting on a loved one’s behalf when they are no longer able to. Follow us on www.hcgm.org/socialservices or register as a member in order to obtain information on upcoming events and activities by telephone or by email. Do not wait for others to decide for you. We see it every day, elderly people who are living in conditions that are abusive or inappropriate or in a situation that their relatives or friends do not necessarily like or agree with and all because the elder did not plan appropriately for their senior years.
For more information contact a notary or contact SSHQ: 450-688-2091
January 2018