Einstein entered my law office and told me about his 89-year-old Uncle Andy.
“Andy fell again and was rushed by ambulance to the hospital,” Einstein said. Einstein rushed to see his uncle at the hospital. While Einstein was there, Julie, a hospital case worker, spoke to him. “Who would make treatment decisions for your uncle?” she asked.
Einstein said, “Andy lived alone since his wife died two years ago. She went to all of Andy’s doctor appointments because Andy was forgetting things.”
“Who has your uncle’s power of attorney for personal care?” Julie asked.
“What’s that?” Einstein asked.
Julie explained, “It is a legal document that says who can handle Andy’s health care decisions.”
“But what about his house? It’s empty. We can’t leave it like that,” Einstein said.
Power of Attorney for Property
Julie said, “That’s a different document. It is called a power of attorney for property or finances. The hospital is only interested in who can make treatment decisions for your uncle. He seems confused after his surgery. He cannot be allowed to go home. He will need to go into a rehab program and perhaps a nursing home.”
“But my sisters… they promised!” Einstein said. “They told Andy he would never have to go into a home.”
“I understand,” Julie said, “but did your uncle have a plan for his care? Can he pay a personal care worker to come into his house to help him? Can he afford to stay in his house and pay for care?”
“I don’t know how much money my uncle has.”
“Well, that makes it difficult,” Julie said. “How can you prepare a budget if you don’t know if he can afford the house and personal care? Can you find out what is in his bank account? Did he have a financial advisor?”
“Yes but they can’t talk to me because of privacy laws,” Einstein said. “It is a lot of B.S. because I am only trying to help.”
Julie said, “But the advisor does not know that and the privacy laws…”
“I know but it still seems stupid. I want to use Andy’s own money for Andy,” Einstein said.
Einstein Needed Legal Advice
Einstein was in my law office to see how I could help.
“My sisters are coming back from Florida next week,” he told me. “I don’t know what to tell them. We don’t think Andy has a power of attorney.”
“Well,” I said “you will need to search his house. Check with any lawyer he had and ask his advisors. If there is no power of attorney, you need a court to help you.”
“That will take hours of work,” Einstein said. “Who is going to do that? I have to get back to my job. I am on a sales trip next week.”
“But you want to find Andy’s power of attorney if he had one,” I said. “It is a lot easier if Andy did have one.”
Otherwise someone must be appointed as your uncle’s guardian. You and your sisters will have to decide who wants that job. You all need to consent to be appointed as your uncle’s legal guardian.
The court can make you Andy’s guardian to make his personal care and financial decisions. The court will want to know your management plan for Andy’s assets. You need to be very clear about what happens to his house if it has to be sold.
Your uncle will need to be assessed to confirm he cannot make his own financial or health care decisions. Those assessments cost around $500-$1,500. You may also have to post a bond so the money does not disappear. Can you be bonded?
We have time to figure this out. There are no court appointments available for two months.”
Einstein Was Overwhelmed
Now I asked, “Did your uncle ever express any preference about his last wishes?”
“What do you mean?” Einstein asked.
“Well, has Andy ever discussed funeral arrangements? Do you know if he’s religious? Does he wish to be kept alive as long as there is a chance of recovery? Have you ever discussed DNR?”
Einstein asked, “What’s that?”
“DNR — do-not-resuscitate instructions — so a hospital knows what to do in an emergency,” I said.
“This is a big headache and too much trouble.”
Einstein asked me these other questions:
- What is this going to cost and who pays for all this?
- How long will it take?
- Why didn’t my uncle do this for himself?
- Why did he leave all his affairs in such a mess?
- Why are we stuck with his problem?
- Why are powers of attorney not recorded somewhere?
Einstein Answers His Questions
I said to Einstein, “Do you own a home?”
“Yes,” he said.
“Do you have a will?”
“Do you have any powers of attorney?”
“Well,” I said, “then you are in the same boat as your uncle. Nobody would know if you had powers of attorney or where to find them. It’s not too late for you. You can do something about it now.”
Suddenly, Einstein realized the importance of proper estate planning.
It is never too early to be prepared.
About Edward Olkovich
Ed Olkovich is a nationally recognized estate expert. He is a Certified Specialist in Ontario estates and trusts law. His law firm’s website is MrWills.com — The Home of Happy Executors. Visit Ed’s blog for more free valuable estate information. © 2016