A question that often arises when discussing powers of attorney is whether to appoint the same person as the decision maker for property and personal care. although the roles are distinct at law, in practical terms there is a great deal of overlap.

There are advantages of appointing the same decision makers for both roles, such as simplicity and consistency. However, different people may be equipped with skill sets which make them particularly well-suited for one role versus another. Additionally, appointing one decision-maker for both roles may increase the potential for a conflict of interest. For example: an attorney for property might select less expensive accommodations or limit costly personal care services due to financial considerations rather giving greater consideration for the grantor’s comfort and well-being. When an attorney for property is also a beneficiary of the grantor’s estate, the potential for a conflict of interest can be exacerbated as there may be an inclination to preserve the potential inheritance.

Although the Substitute Decisions Act outlines the scope of decision-making power for each attorney, some types of decision-making overlap. For example: shelter. The decision about where you live is a decision to be made by the attorney(s) for personal care. However, this decision is informed by your finances and often requires that the attorney(s) for personal care and property collaborate or at least communicate.

Scotiabank Economics published an article in June 2023 sharing that “an overwhelming majority of Canadian’s want to age in place.” The report[1] contains illuminating information about the cost of care, the need for more comprehensive planning and signals the potential financial gaps facing Canadian households. Planning at its earliest stage involves considering what your wishes are, and it can be helpful to document these wishes and desires for the benefit of the substitute decision makers.

In the Annotated Power of Attorney published by the Law Society of Ontario, helpful reference clauses were provided specifically aimed at addressing the grantor’s request:

1. to remain in their home for as long as possible, or
2. if it becomes necessary to move to a different residence, then to ensure the selected facility is as “healthy as possible” and to use whatever funds are necessary to maximize the grantor’s quality of life. [2]

It is important to give special consideration to housing when the grantor is residing with people other than their spouse, or if there are people they expressly do not want to live with.

• consider for example, a parent whose adult child or children continue to reside at home.
  • if the parent lost capacity, does the parent wish to allow the adult child to continue to reside in the home?
  • should expenses associated with the home be shared, or rent paid?
  • would the parent intend that the house be maintained for the benefit of their adult child if the parent could no longer safely live in the house?

• what about an adult child who wishes to move in with a parent to provide caregiving OR where an adult child wishes to move their parent in with them?
  • does the grantor want to live independently for as long as possible? I had a conversation recently where the individual specifically did not want to live with their adult children. His instructions were “do not let them move in with me.”
  • renovations or improvements to the grantors home could be permitted to allow them to safely remain at home longer, but what about renovations or improvements to a caregiver’s home? Could/should an attorney fund those improvements?

Housing can impact independence, mental health and well-being, and can affect quality of life and longevity in many ways. As with estate planning generally, talking about your wishes and documenting your intentions can be helpful to ensure that those you have appointed to carry out your plan are equipped with the information to enable them to do so. All of which is a good reminder to dig deep with clients who are preparing their Powers of Attorney to identify complexities, needs and wishes for late-life planning.

Alicia Mossington, Estate and Trust Consultant, Scotiatrust

[1] Young, R. “Rethinking Retirement in an Age of Longevity” (Scotiabank Economics, 26 June 2023) Retrieved from: scotiabank.com/economics.

[2] The Annotated Powers of Attorney for Property and for Personal Care 2021. (Law Society of Ontario, March 2021)