When a loved one has an accident, becomes ill, or is incapacitated, you don't want to spend your time filling out paperwork or initiating legal proceedings so you can look after their affairs. You want to be by their side taking care of them. Here are some pointers to make your life easier and help you get assistance if someone close to you loses their independence or faculties.
"A person is considered to have lost their independence if they are unable to express what they want, take care of themselves, or manage their affairs," explains Chantal Lamothe, Account Manager at National Bank.
"But, be careful," she warns. "The situation isn't always black and white. It can be temporary, permanent, or even cyclical."
Many things can cause a loss of independence leading to incapacity, and it can happen at any age. If one of your parents had a traffic accident, for example, and were no longer able to walk, they would be physically incapacitated. If that same parent had mental health issues that started to worsen, or problems related to normal aging being to appear, the issues involved and actions to take would be on a whole different level.
Judging another person's condition can be extremely complex, from both a practical and emotional perspective. Especially when it's someone you love. We don't want to deprive a close relative of their freedoms, but we do want to protect them.
In some cases, a relative who suffers from an incapacity will realize it themselves. A person who is bedridden with a physical injury, for instance, may understand perfectly well and give their free and informed consent. In this situation, they could give someone they trust power of attorney to take care of their finances and bills.
In other, more complex situations, a loved one with an incapacity may not even realize it, as is often the case with dementia, a coma, or mental health issues.
You would then have to contact medical professionals and legal authorities in the person's province of residence. Every province has its own system of "public curators" or "public trustees." Start by contacting them to find out what steps you need to take, since the rules vary from place to place.
In Quebec, for example, the State or a relative or caregiver who wants to protect another (a relative or natural caregiver) can ask the court to open or validate a protection mandate. The request can also be made before a notary, provided the person who is suffering from the disability doesn't contest it. In most cases, the public curator will then require that a psychosocial and medical assessment be carried out. Finally, a decision will be issued by the court.
If your loved one is able to decide for themselves, they can opt for a power of attorney. This is permission given to a person to represent them and make decisions on their behalf. The person who gives a power of attorney can put limits on it. It can be general or limited to certain aspects of their life.
In Quebec, it covers asset management while elsewhere in Canada, a power of attorney could also cover health care decisions. In all cases, it’s strongly recommended that you be accompanied by a lawyer.
"In most English-speaking provinces of Canada, a power of attorney is a document that evolves according to the protected person's condition," explains Chantal Lamothe.
In other places, like Quebec, the power of attorney ceases to exist as soon as the protected person is declared incapacitated. In other words, the power of attorney is no longer valid."
When this happens, in the absence of a power of attorney, the court will often consult with a group of relatives and friends in order to select one of three scenarios. They may choose an advisor to a person of full age (supporting a person in the case of mild or temporary incapacity), tutorship (greater responsibilities in the case of partial or temporary incapacity), or curatorship (total and permanent incapacity).
Everyone, even those in good health, should be prepared in case they become incapacitated. Like choosing your retirement home—do it while you still can.
"We often underestimate how difficult and time-consuming caring for a loved one can be," says Ms. Lamothe. If you've prepared, you'll make life easier for your caregivers and reduce the likelihood of family conflict."
To properly prepare, consider drawing up a document that establishes your wishes—a living will.
In some places, like Quebec, a completed and signed incapacity mandate will save you time, avoid a good deal of grief for your loved ones, and ensure that your wishes are taken into account. "Otherwise, you don't get to decide," points out Ms. Lamothe.
Consider choosing someone you trust to manage your property, see to your health needs, and clearly state your wishes if something were to happen. You can refuse heroic medical measures to prolong your life, for example. "Also," adds Ms. Lamothe, "choose someone who is up to the task and available. If you have a business, for example, you'll want a caregiver who understands how businesses work."
And as long as you're able, you can change or revoke your plans.
You might also consider giving your advisor or financial planner authorization to communicate with a third party. This way, if they notice that there have been unusual banking transactions that may be due to incapacity (e.g., a serious loss of cognitive ability on your part), they can inform someone close to you.
Don't use a joint account to handle the other accountholder's affairs," our expert concludes. "This bank account can be seized if the co-holder goes bankrupt. Additionally, in some provinces, these accounts are not considered part of the estate if one of the accountholders dies."
Do caregivers receive assistance and a salary?
They could. You can even determine your caregiver's compensation yourself in a document such as a protection mandate. Or you could ask a family member and/or caregiver to act voluntarily.
Whether or not a caregiver is paid, they will have access to a wide range of federal and provincial tax credits and benefits. Though these benefits can sometimes be worth several thousands of dollars, caregivers often don't know about them. Your financial advisor can help you with this.
According to data from a 2018 Statistics Canada study, only 14% of caregivers received financial support from family and friends, 8% received federal tax credits, and 6% received funding from a government program.
No one is immune to a loss of independence that can lead to incapacity. No one is immune from having to become a caregiver to support a loved one either. The key is planning so you'd have better control if the unexpected were to happen. Fortunately, help is available. And no matter what happens, we're here to help.
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