Are you putting your child in a conflict of interest by appointing them as your attorney by power of attorney?
Or as your representative with a representation agreement?
Of course you appoint your child! How could you find a more trustworthy candidate?
How could that possibly put them in a conflict of interest? What other interest than your best interests could they have at heart?
To put it bluntly: their own. Even if unintentionally.
I’ll give you a scenario to illustrate the conflict.
You and your husband had put your life savings into your home. You continue living in the home after your husband dies.
Modest pension income covers your expenses.
At some point, your cognitive decline becomes noticeable to your child.
Concerned, they take you to your doctor who diagnoses dementia.
Years ago, you had the foresight to appoint your child as both your attorney by power of attorney as well as your representative by a representation agreement.
On the one hand, “Thank goodness!”. Someone you love and trust is in place to handle your financial and care affairs.
But on the other hand, you start feeling the discomfort of losing your independence.
A fall puts you in the hospital with a broken hip. On release, you need help with mobility and personal care. You also require supervision because of advancing dementia.
Strange surroundings make you uncomfortable. You want nothing more than to get back into your familiar home surroundings.
But it would take accessing the equity in your home to pay for significant renovations to accommodate your disability. That equity would also be required to pay for care and supervision.
The renovations and ongoing care expenses would be significant. That equity in your home could completely disappear.
Alternatively, the very best of care facilities, along with supplemental one-on-one services, would also cut into that equity.
Giving you the level of support and care that you can afford will cut sharply into your child’s inheritance.
Is the conflict of interest painfully clear?
Perhaps I am being cynical.
Perhaps every child, no matter their own financial circumstances, would spare no expense when spending their anticipated inheritance for their parent’s comfort and care.
Or I’m being a realist.
There’s another factor. However well-meaning your child might be, they might be horribly ill-equipped to be your advocate.
They might not know about what levels of home care can be provided by the health authority. Or be unfamiliar with the kind of equipment and home supports that can help you stay in your own home.
They might not know that one on one service providers can be hired to support those in care homes.
Yes, anyone can make inquiries, but feeling your way through unfamiliar territory can be overwhelming and is never as effective as knowing the ins and outs.
I have been looking into alternatives. Are there folks with experience and expertise in end-of-life matters who are offering their services to act as attorney and representative?
Imagine the peace of mind of appointing a professional advocate with that expertise.
You can keep your kids in the loop by giving them the authority to monitor the work of the professional while giving them the peace of mind that their parents have an experienced and capable advocate.
Are professional advocates available?
I’ve come up empty in my superficial search, but I might not know where to look. If they exist, they’re not well advertised.
If you are aware of a business with professional advocates who would provide those services, please let me know and I will pass that information along.
I envision a service that would provide candidates with experience in elder care, who are carefully vetted and bonded.
The professional would be required to keep diligent records of their activities and reasons for their decisions, and to provide transparency to whoever you wish as a “monitor”.
With careful oversight by the business that employs them.
Would you be interested in accessing this kind of service?
Are you someone who possesses the life experience that would make you an excellent health care and financial affairs advocate?
Please e-mail me and I’ll share with you the results of my inquiries.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 ½ years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.