It is now virtually assured that every day I shall be treated by my mother to a repeat recital of the reasons for not moving from her house to the retirement residence. It is immaterial to my mother that virtually everyone, including her beloved granddaughter, her physician and her children, have exhorted her to take this step as she approaches her 89th birthday and incrementally declines both mentally and physically. She remains however in that blurry sphere which is partially demented and partially incapable so the powers of reasoning are of diminished persuasiveness. Mother also holds fast to her most dear possession, her house, and all that is therein. She is convinced that the encroachment of the hounds is at her very doorstep. Once again logic and necessity entirely fail to address her complaints.
The mercurial disposition of my mother vis-à-vis the venture makes for plodding progress and exhausting repetition. Meanwhile I have orchestrated for my mother the reservation of a charming apartment at the retirement residence and the transfer of furnishings to it. Contemporaneously we’ve had meetings with real estate agents to appraise the house and plan its sale. Nonetheless as my mother’s inclination to the project shifts by the hour I have progressively deteriorated from a posture of cooperation to one of blunt determination. There appears to be no room whatever for compromise or initiative on the part of my mother. This is a sadly trying predicament because it highlights the imperative to make decisions which are temporarily unpopular.
The legal device of a Power of Attorney was originally conceived largely as a commercial tool to free busy corporate directors from the mundane duties of bureaucracy. Pointedly it was not the purpose of empowering an attorney to appoint someone to act for you when you hadn’t the capacity to act for yourself. Indeed it was a logical extension of the standard Power of Attorney that the attorney (that is the person empowered by you to act on your behalf) was only capable of doing that which you could do. Thus the theory was that if you were incapable so too was your attorney. While this seeming paradox may fly in the face of what is commonly considered to be the whole point of a Power of Attorney (that is, to help people who cannot help themselves), it is nonetheless a fact even though it was honoured more in the breach than its observance (particularly by banking institutions who were clearly anxious to facilitate daily commercial transactions). It is only relatively recently upon the enactment of the Substitute Decisions Act (Ontario) in 1992 that the concept of “Continuing Power of Attorney” (that is, continuing after one becomes incompetent) was codified:
Continuing power of attorney for property
7. (1) A power of attorney for property is a continuing power of attorney if,
(a) it states that it is a continuing power of attorney; or
(b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property. 1996, c. 2, s. 4 (1).
Note: Subsection 7 (1), as re-enacted by the Statutes of Ontario, 1996, chapter 2, subsection 4 (1), applies to powers of attorney given before or after March 29, 1996. See: 1996, c. 2, s. 4 (5).
(2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will. 1992, c. 30, s. 7 (2).
Most properly drawn Powers of Attorney are not conditional upon a finding or adjudication of incapacity of the grantor of the authority. This may be considered a moot point when the competency of the grantor is undisputed. Where however the grantor continues to have even the partial appearance of competency, or worse objects to the tactics of the attorney, the implementation of the authority risks running afoul of the authority not to mention the creation of a transactional hiatus and family strife. At this contentious juncture it is incumbent upon the attorney to recall the reason for which he or she was appointed and to exercise that care and skill which are in the best interests of the grantor. The accommodation of the expressed wishes of the grantor is irrelevant if it collides with what is in the best interests of the grantor.
Assuming that my theses are correct, it is predictable that the outcome will prove satisfactory. In the meantime however the annoyance of unnecessary conflict and anxiety continues to haunt the process of change. As understandable as the fear of change may be, as sympathetic as one may be to the perceived sense of loss upon moving from one’s longtime home, as enthusiastic as one may be to protract the inevitable, the greater burden is to acknowledge the demands of time, inevitable declension and to plan accordingly. The magnitude of the change means that the modification is equally substantial and addressing these features requires more than a moment’s attention.