Protect Your Elderly Parents. Lynne Butler
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or water being disconnected;
• forgets that he or she has already paid bills and pays them repeatedly;
• misplaces money, pension cheques, bills, or important paperwork;
• cannot manage small financial transactions such as store purchases or restaurant meals that he or she used to be able to manage;
• neglects to deposit cheques in the bank;
• neglects to complete tax returns;
• unwittingly lives beyond his or her means due to extravagant gifts, charitable donations, or purchases that appear to indicate that he or she does not understand the value of money or the economics of his or her household;
• makes irrational, unnecessary purchases, such as buying cans of dog food when he or she does not own a dog;
• makes large cash withdrawals for which there is no corresponding purchase or bill payment and cannot recall where he or she spent the money;
• has made a recent friend — usually of the opposite sex — who seems to exert a lot of influence on him or her and to whom he or she is giving money or property; and/or
• is physically unable to get to the bank on his or her own.
3. Identifying Mental Incapacity
The behaviours mentioned in sections 1 and 2 can be seen in many elderly people who are beginning to lose their mental competence. However, unless you are a doctor, it is not easy to understand what these behaviours mean or why they are occurring. Loss of mental capacity may be due to any one of a dozen causes. In many cases, loss of capacity is progressive in elderly people, meaning that the possibility of recovering capacity is slim. Only a doctor can tell you for sure whether this is happening to your elderly relative.
Loss of mental capacity is rarely all or nothing, especially in the early stages. Keep in mind that your elderly relative may be perfectly capable of independence in some areas while losing his or her ability to deal with another area. This is why guardianship and trusteeship are in most parts of Canada considered to be two different jobs; not every dependent adult needs help with all areas of living.
You should consult with a doctor to try to understand how your elderly relative’s condition will affect him or her now and in the future. By consulting with your elderly relative’s doctor, you may be able to predict the kind of care your relative will need in the future. You can then work within the legal system to set up the protection and assistance that is needed. The level and type of assistance needed may well change over time.
As a cautionary note, try not to jump to conclusions about an elderly relative’s capacity regarding money. It is important to understand that an elderly relative may make financial decisions that you do not like. This does not necessarily mean that the relative has lost mental capacity. Generally speaking, an adult does not require the approval of other adults (even if those adults are his or her children) when spending his or her own money. Most of us can think of friends who choose to use their money for gambling, risky investments, expensive leisure equipment, or the support of a particular individual. Often these are choices with which we may not agree but we do not interfere, recognizing that individual’s right to spend his or her own money as he or she sees fit.
As an adult, your elderly relative has the same right as anyone else to decide what he or she wants to do with his or her money, even if the person’s choices may look odd or foolish to other people. It is only when it becomes apparent that the odd decisions are being made because your elderly relative is suffering from memory loss, disorientation, or influence by an unscrupulous person that mental capacity becomes an issue. Make sure that you are not imposing your own wishes or values on your elderly relative; your goal is to make sure that he or she is still able to express his or her own wishes.
4. Medical Evidence You Will Need
If you make an application to the court to become a guardian or trustee, you will need medical paperwork to support your application. Specifically, the medical paperwork must prove your claim that the dependent adult suffers from a loss of mental capacity. A court is simply not going to take away an individual’s right to manage his or her own affairs unless the court is given proof that the person cannot manage on his or her own any longer. This proof is always given by people other than the person applying to be the guardian or trustee (i.e., independent third parties who have nothing to gain or lose from you being appointed as guardian or trustee).
The medical reports or affidavits that you obtain as part of your court application will serve two purposes. The first is to protect your elderly relative from unscrupulous people who try to gain control over the relative’s finances for fraudulent purposes by making it appear that the elderly person cannot make his or her own decisions. The requirement that the evidence be independent makes fraud more difficult. Fraud does not only happen to wealthy seniors; it can and does happen to those with modest assets as well, and all elderly persons are entitled to the protection of the law.
The second purpose is to assist a judge who will usually not even meet or see the dependent adult during the course of your application. The judge needs to be able to decide what is in the best interests of the elderly relative and relies on the reports to provide the needed information. Because all of the laws pertaining to dependent adults make it very clear that a loss of ability to make one’s own decisions is a prerequisite to anyone being appointed as a guardian and trustee, it is up to the person making the court application to prove to the judge that a guardianship or trusteeship is actually needed.
Make sure that the medical forms are properly completed, signed, and dated, and that you are not relying on outdated information — medical information more than six months old may be considered unreliable. Make sure that all of your paperwork for the court is carefully and thoroughly prepared so that the court can make an informed decision.
The list below gives details about the various forms needed in each province and territory and who should be completing the forms. All of the forms can be found on the CD that accompanies this book. Make sure that you are giving the court original documents and not photocopies or fax copies.
Alberta
You will need a Form 1: Report of Physician or Psychologist (DAD16) to be signed by a medical doctor or a psychologist. You will also need a Functional Assessment Report (DAD17), which is usually completed by a hands-on caregiver such as a nurse, therapist, or social worker.
British Columbia
You will need two Affidavits by Doctor, completed by two medical doctors. As there is no specific form requested by the legislation, you will follow the general form for affidavits under the Rules of Court. The wording given in the forms that accompany this book is suggested wording only and is not mandated by the Rules of Court. You may change the wording to suit your own specific set of circumstances.
Manitoba
You will need two Affidavits of Doctor, completed by at least two medical doctors. As there is no specific form requested by the legislation, you will follow the general form for affidavits under the Rules of Court. The wording given in the forms that accompany this book is suggested wording only and is not mandated by the Rules of Court. You may change the wording to suit your own specific set of circumstances.
New Brunswick
You will need at least one Affidavit of Doctor from a medical practitioner and at least one Affidavit of Person Acquainted with the Respondent from a person acquainted with the dependent adult. As there is no specific form requested by the legislation, you will follow the general form for affidavits under the Rules of Court. The wording given in the forms that accompany this book is suggested wording only and is not mandated by the Rules of Court. You may change the wording to suit your own specific set of circumstances.
Newfoundland and Labrador
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