British Columbia Law Filter: Power of Attorney.
May 30, 2010 1:23 PM   Subscribe

Help my (elderly) mother take care of her (even more elderly) sister. YANML, and we will be consulting one soon, but in the meantime . . .

My mother has an enduring Power of Attorney for her (even more elderly) sister. My mother's understanding of this is that she is not to act for her sister until and unless the sister is incapacitated and unable to make financial decisions.

Meanwhile, the sister, who lives in a retirement home that does not provide assistance with personal care, has come to need personal care assistance, in everyone's opinion but her own. From time to time she agrees while that it might be a good idea, it's certainly not something that she'd PAY for. In her 9th decade of being very careful with her money, she has accumulated quite a lot, certainly more than enough to pay for the care she needs as long as she will need it.

There are issues around self-neglect and the right of a person to be in charge of their own personal and health care that make the situation more complex.

My mother's question is whether she, acting against her sister's wishes, can use her Power of Attorney power to divert some of her sister's money to hire personal caregivers for her sister. Or to use her sister's money to move her sister, against her will, to a facility which provides a higher (and appropriate) level of care?

The care facility has asked for the sister to be assessed: if she doesn't' meet the criteria for the facility she will have to move. My mother's problem is how to handle things over the next weeks while the assessment is scheduled and performed.
posted by Slugette to Law & Government (5 answers total) 2 users marked this as a favorite
Place very little weight on what follows, because it is true where I live, in the U.S.

The rules here include:

1. Unless a POA says that it does not spring into effect on disability, it can be used at any time.
2. It cannot be used to countermand the principal's own declared wishes. It is intended for use when the principal cannot act for herself, or if she chooses to let the agent act.
3. Anything that would be counter to her declared wishes would require a determination by a suitable court that she is not competent, and a grant of authority to a substitute (we call it a guardian) to act in her place.

By all means, do not take any action before consultation with a solicitor.
posted by yclipse at 1:46 PM on May 30, 2010

OP, what country are you in?
posted by paduasoy at 1:59 PM on May 30, 2010

IANAL, just someone who has dealt with powers of attorney in Ontario.

The BC branch of the Canadian Bar Association has a fairly comprehensive, readable description of Power of Attorney and Representation Agreements. This part may be relevant to your mother's situation:
What decisions can be delegated with a power of attorney?

A power of attorney is used to delegate financial and most legal decisions. This is true for both a power of attorney and an enduring power of attorney. But your attorney cannot make medical or health care decisions for you, such as consenting to surgery or dental work for you. For these decisions, you need to make what’s called a “representation agreement.”
You should verify with a BC lawyer whether the agreement that names your mother can be used in this situation.
posted by thatdawnperson at 2:04 PM on May 30, 2010

Is there any other family to help your mother out? Even if she has to do all the practical stuff by herself, surely there must be someone for her to lean on emotionally?

Also, your area should have a Department of Aging and Adult Services (or similar name) for you to contact.
posted by Rosie M. Banks at 4:17 PM on May 30, 2010

Sorry - didn't see your header re being in British Columbia. My experience is with the English and Scottish systems so I'll stay out of this.
posted by paduasoy at 2:49 PM on June 5, 2010

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