When deciding to prepare powers of attorney for personal care and property, it is imperative to carefully consider who you want to appoint as your attorney(s). In the event you decide to appoint multiple attorneys, is also important to consider whether you want each of them to be empowered to make decisions separately or if decisions should be made together.
Imagine a situation where Jane Smith is considering preparing a new will and powers of attorney for property and personal care. Jane is 70 years old and her husband of 45 years has just passed away. Jane is worried about who will manage her affairs if she becomes incapable of doing so.
Jane has two sons, Mark and James, who are in their early 40’s. Mark is married with young children, has a steady job as an accountant and owns his home. James is not married, works steady but seasonal employment and rents an apartment. James makes a good income but has always been relatively spend-thrift and has some credit card debt. Mark and James do not always get along well and often get into arguments at family gatherings.
Even though Mark and James have their differences, Jane believes that they will be able to work together when it comes to taking care of her and her finances once she needs assistance, or is no longer able to do it herself. She wants to appoint them both as her attorneys.
An important decision Jane now needs to make, is whether she wants Mark and James to be empowered to act “jointly”, or “jointly and severally” – or in other words, whether she wants them to have to make decisions together, or to be able to act separately.
If Jane decides to appoint Mark and James “jointly”, this means that they will both need to agree on all decisions made with respect to Jane’s care or her finances. For example, both Mark and James will need to attend at the bank together when withdrawing funds from Jane’s account and both of their signatures will be required on cheques in Jane’s name. Mark and James will also need to agree on what type of care-giving assistance Jane might require as she ages and/or whether she may need to be moved to a full-time care facility as she ages.
By appointing Mark and James “jointly” as her attorneys and requiring them to be unanimous in their decision making, Jane would be reducing the risk that one of her sons might misuse her funds and act alone without the other son’s knowledge. Although Jane does not believe that James would ever steal money from her, she has some concerns about his ability to manage money, given his spending habits in the past. By having Mark and James act jointly, Jane would have peace of mind in knowing that both of her sons must be in agreement regarding all the choices they make, financial or otherwise.
A major drawback to a joint appointment, however, is that it may not always be practical for Mark and James to attend together at the bank to sign documents at the same time. James often travels for his job and both sons enjoy taking vacations abroad. If James is away for work and an important bill needs to be paid, Mark may have to wait for his return before a cheque can be signed to pay it. In addition, given the fact that Mark and James do not always get along, requiring them to agree on all decisions they make could cause significant conflict between them, or even lead to litigation if they cannot resolve their differences.
Joint and Several Attorneys
So what if Jane decides instead to appoint Mark and James to act jointly and severally?
If Jane’s power of attorney for property gives Mark and James the authority to act jointly and severally, this means that they can each make separate decisions without the other person’s agreement or sign-off on same. This type of appointment would solve the problem that Mark faces when he needs to pay one of Jane’s expenses urgently, but James is out of town for work. Mark would be able to sign a cheque from Jane’s account, without the need for James to be present and to sign as well. This would also allow Mark and James to split up their responsibilities as Jane’s attorneys, thereby reducing the burden of work on each of them.
While this option may solve some of the drawbacks of a “joint” appointment, there are other risks in allowing your attorneys to act separately and to make decisions on their own. A joint and several appointment may increase the risk of financial abuse, because one attorney can act independently and without the other attorney’s knowledge. In addition, if Mark disagreed with how James was spending Jane’s money and was not able to resolve these concerns, he may have to resort to litigation in order to put a stop to James’s actions.
Clearly, both types of appointments have their benefits – as well as their risks. Jane will need to meet with her estate planning lawyer to discuss her options and to make a decision for which type of appointment is right for her in the circumstances. Given her concerns, Jane’s lawyer may even advise her to explore the appointment of only one attorney, instead of two.
Putting aside the “joint” vs. “joint and several” debate, the question you should ask yourself when preparing a power of attorney is who is the best person (or persons) to take care of you, when you may not be able to take care of yourself? Acting as an attorney for property or personal care is a huge responsibility, and you want to make sure that the person you appoint is up to the task.
For questions about your existing powers of attorney, the responsibilities and duties required of an attorney, or for advice and guidance on other Estate Litigation matters, contact the estate litigation lawyers at Eisen Law in Toronto to find out how we can help. Call us at 416-591-9997 or contact us online.