with another person whereby the person will help the elderly person make decisions. The person selected to give that help is called a co-decision-maker. This is because he or she will help the elderly relative make his or her own decisions as much as possible, rather than stepping in to make all decisions.
The person selected can be a personal co-decision-maker who can assist with health and personal decisions. The person’s job is roughly equivalent to that of a guardian. He or she may also be a property co-decision-maker who can assist with decisions respecting finances and property. This job is roughly equivalent to that of a trustee.
As with the British Columbia Representation Agreements discussed above, the Saskatchewan co-decision-making agreements are specifically allowed by law to avoid the need for guardians and trustees to be appointed by the courts. The agreements allow the elderly relative to maintain some control over decisions that affect him or her.
6.3 Agreements in the Yukon
In the Yukon, there are two kinds of agreements available. One is the Supported Decision-Making Agreement (under Part 1 of the Act) and the other is a Representation Agreement (under Part 2 of the Act). They will be discussed in more detail in the paragraphs below. It is important to know that the Yukon law specifically says that the court should not be asked to appoint full guardians or trustees unless alternatives such as these agreements have been tried or at least carefully considered. Therefore, if you intend to ask the court to appoint you as a guardian or trustee in the Yukon, you are going to have to explain why one of the two types of agreements could not have been used instead.
6.3a Supported Decision-Making Agreement (Yukon)
This arrangement is appropriate where the dependent adult who signs an agreement is not in need of a full guardianship or trusteeship because he or she retains some ability to deal with his or her own affairs, but some help is needed. The person who assists the dependent adult under a Supported Representation Agreement is called an associate decision-maker. You can see from the title given to this person that the agreement is intended to foster co-operative, joint decisions, as opposed to having a guardian or trustee alone make the decisions he or she thinks are appropriate. The associate decision-maker’s duties are to assist the dependent adult in making decisions, expressing decisions, obtaining information, and discussing possible outcomes with the dependent adult.
The associate decision-maker may have the authority to deal with personal and health-care decisions normally associated with guardianship or financial decisions normally associated with trusteeship, or both.
This arrangement is much less intrusive to the dependent adult than a full guardianship or trusteeship. Signing a Supported Decision-Making Agreement would ensure that the dependent adult would retain the ability to make decisions and obtain information, but the assisting person would obtain the legal status to assist the dependent adult.
6.3b Representation Agreement (Yukon)
This kind of agreement is different than the Supported Decision-Making Agreement in that this kind of agreement appoints two or more people to make decisions on behalf of the dependent adult. The people who act under this kind of agreement are called representatives. Although the dependent adult is the one who appoints trusted friends or relatives as his or her representatives, the dependent adult is no longer the one making the decisions once the document is signed.
This kind of document can cover either the personal- and health-care decisions normally associated with guardianship or the financial decisions normally associated with trusteeship, or both. The document can and should be tailored to meet the needs of the dependent adult who is signing it. In this way, a dependent adult who only needs help with a certain kind of transaction, such as banking or investing, is not going to have unwanted help imposed on him or her for things he or she is perfectly capable of doing himself or herself, such as deciding where he or she is going to live.
7. Enduring Power of Attorney
Like the Health Care Directive, an Enduring Power of Attorney is a document that is signed by the elderly relative, usually long before it is actually needed. Note that an Enduring Power of Attorney is different from a regular Power of Attorney that is often used for business and banking. An Enduring Power of Attorney is specifically designed so that it can be used even though the person who signed it has lost his or her mental capacity. In Ontario, it is referred to as a Continuing Power of Attorney for Property and the word continuing has the same meaning as the word enduring.
The Enduring Power of Attorney names a person to be the elderly relative’s spokesperson (referred to as his or her attorney). It also gives the attorney the authority to deal with the relative’s real property and personal property. Most of these documents give a blanket authority so that the attorney can do anything that the relative can legally do with his or her property, subject to certain restrictions. Because the document was signed by the relative at a time when he or she had mental capacity, the document reflects the elderly person’s wishes about how he or she wants his or her property dealt with while alive.
The kind of decision that may be made by an attorney under an Enduring Power of Attorney roughly corresponds with decisions that can be made by a court-appointed trustee. In other words, the attorney can make decisions about money, sale or rental of real estate, or payment of bills, but he or she has no authority to make any decisions about health or medical care.
Again, as with the Health Care Directive, if the document is not already in place and your elderly relative has lost his or her ability to understand legal documents, it is too late to have an Enduring Power of Attorney signed.
8. Temporary Guardianship and Trusteeship
The laws in some parts of Canada specifically say that a person can be appointed by the court as a guardian or trustee of another adult on a temporary basis. In other words, the court order is only intended to be in effect while some specific situation is dealt with, after which the dependent adult resumes control of his or her own affairs.
Generally speaking, a temporary guardianship or trusteeship is not particularly helpful when the person who needs a guardian or trustee is an aging relative. The incapacity that accompanies aging is rarely temporary in nature. If a temporary order were to be obtained, it is quite likely that you would find yourself renewing that temporary order or applying later on to the court for a permanent order. Therefore, this book will not go into detail about the procedures to be followed to apply for a temporary order.
9. An Important Note about Wills
Confusion often arises when well-intentioned individuals who want to look after elderly relatives find out that they are named as executor in the relative’s will. These individuals then believe that they have a legal right to deal with the relative’s assets while the relative is still alive. This is not the case. A will gives no power to anyone until the person who signed the will is deceased.
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