Gwen and Susie’s story has three parts:
1. Gwen’s Choices for End-of-Life: Spoken and Unspoken
2. Susie Navigates her Role as Gwen’s POA for Property and Personal Care
3. Susie Decides: The Law Applied
Background
Susie’s mother, Gwendolyn, mentioned in an earlier post: https://www.fallowestateslaw.com/post/medical-assistance-in-death-maid-a-law-in-flux, was a widow at the time of this story. She had three adult children: Susie, (married to Bill), Anna and Margaret. Susie and Bill, both retired teachers, lived a few minutes away from Gwen in Kingston, Ontario. Anna, a successful executive, lived in New York State, and Margaret, a nurse, lived in British Columbia. Thankfully for her children, Gwen was careful to update her estate planning documents a few years before her health and mental capacity declined.
Who should Gwen choose as her executor, her attorney for property and her attorney for personal care?
She consulted her lawyer for guidance on which daughter to place in charge of her financial and personal care decisions if she lost capacity and who to name as her executor upon death. It was important to her that all her children feel valued and respected and Gwen’s first impulse was to name all three daughters in each role.
Her lawyer encouraged her to take a practical approach, rather than an emotional approach, to these appointments. The lawyer explained that based on the legal, taxation and practical issues that can arise for foreign resident executors and attorneys for property and personal care, Anna would not be suitable for these roles, despite her ability.
For practical reasons, Gwen’s lawyer advised her not to name her daughter, Margaret. Although there were fewer legal or taxation traps in naming Margaret, acting from a geographical distance can take a toll on an attorney and lead to sub-ideal care for the grantor. Also, the out-of-province executor may have to post a bond to the court, putting a financial burden on the estate, or on the executor directly.
Fortunately, Gwen and Susie, had always enjoyed a close relationship and she decided that Susie would be the best fit as her executor and attorney for property and personal care. At the time Gwen’s lawyer drafted her will and POA documents Susie was retired, good with legal and financial matters and genuinely cared for her mom’s personal well-being. Susie enjoyed good relationships with both her sisters, Anna and Margaret. Everyone agreed that naming Anna would be the best arrangement for Gwen. Gwen’s documents were drafted such that Susie was to consult both Anna and Margaret in making major property or personal care decisions.
Gwen’s Decline
Sadly, after a couple of years of what seemed to be age-related decline, Gwen was diagnosed with dementia and terminal cancer. It was not long before her treating physicians deemed her incapable of making complex health care decisions and turned to Susie for consent to treatments. Despite this, Gwen could still express food preferences and she adamantly insisted that she did not want to move to a care facility. It was hard to know if Gwen was mentally capable to make these decisions.
Susie was often overwhelmed as she navigated scheduling and driving Gwen to doctor’s appointments, arranging home care services, and shopping and cooking for Gwen, alongside managing her own needs, and trying to remain involved in her grandchildren’s lives.
Her sisters, feeling a little guilty not be more involved, wanted regular updates from Susie, and Susie started to wonder if she was handling things properly, so she approached her own estate planning lawyer to get advice, and specifically, Susie was quite concerned about two things. She wanted to know if she had the moral or legal authority to move Gwen into a long-term care facility, despite Gwen’s expressed wish to remain at home. Margaret believed Gwen would be happier living at home and Anna was certain that Gwen had told her she wanted to stay at home. Susie also wanted to know how to make the inevitable end-of-life treatment decisions she would be called upon to make for Gwen.
Next week we look at “Susie Navigates her Role as Gwen’s POA for Property and Personal Care” to see how the law states that she must approach her decision making on Gwen’s behalf.