“It’s bad enough that people don’t have wills,” said Jasmine Sweatman of Oakville, Ont., who is a certified specialist in estates and trusts law. "I think more important education should be placed on the power of attorney, because you’re still alive when these things are starting to be used," she said.
“You’re going to be vulnerable, you’re on that slippery slope and not in complete control of your faculties or of what’s going on around you.”
Last year, three of Kasem's children from a previous marriage filed a petition of conservatorship (or power of attorney) to gain control of their father's health, claiming their stepmother, Jean Kasem, had isolated him from his family and friends. She had been in control of his medical care and controlled access to him. Casey Kasem, 82, suffers from a form of dementia. But a judge denied the request.
This week, one of his daughters was appointed his temporary conservator after the siblings reported their father missing.
A case like that is "unfortunately not uncommon," said David Freedman, an associate professor of law at Queen's University and a lawyer specializing in estates, trust and incapacity law.
Usually in a case like Kasem’s, the person who is appointed the guardian will present a plan to the court, Freedman said.
The next stage is to establish what the issues are, determine the individual's capacity and revise the plan accordingly.
“Maybe the daughter remains in control. Maybe the daughter and wife co-operate," Freedman said.
In Canada, power of attorney is provincially legislated. Although labels and processes are different, the final result is basically the same in all jurisdictions — someone is either designated legally or court appointed to become a substitute decision maker after a person becomes incapacitated. (A power of attorney is appointed by the individual; a guardian is appointed by the court).
“Basically it’s common sense. If you’re going to make decisions for somebody else, you have to act in their best interest," Freedman said. "And if you’re not going to act in their best interest, then somebody can go to court and can interfere and have that power taken away or changed or modified.”
"Everybody should have a power of attorney," Freedman said. "A will is important because it does distribute wealth to your children or other people. And that's great. But be a little more selfish and look after your own interests. And an incapacity plan and a power of attorney is really important."
Someone granted power of attorney can look after a person’s property or oversee their personal care. It can be the same person doing both jobs or different people.
But a number of issues can arise when it comes to decision making.
“A person can be incapable for one decision but not another," Sweatman said. "So it becomes very difficult when you’re dealing with somebody vulnerable and their capacity is diminishing. And because capacity is time specific, you might be capable one day of making a decision where you want to live but maybe the next day you aren’t.”
Often people are not prepared for the duties that go along with power of attorney and become overwhelmed by what’s really required to take care of a person at home.
'In the pressure, they act badly'
"They lack the resources, lack the familiarity, don’t get along with other people and they do things they shouldn’t do, like use [the individual’s] money in ways they shouldn’t or not allow access to them," Freedman said. "And that’s not what should happen.”
"So sometimes it's people that are doing jobs they really don’t know how to do well," he said. "Or they haven't been given advice or it’s too much over their head and in the pressure they act badly."
In Ontario, one of the statutory obligations is to facilitate supportive relationships, meaning a person granted power of attorney cannot deny access to relatives just because they don’t like them.
“That’s not something that’s allowed and it’s the basis in which the attorney can be replaced by a guardian,” Freedman said. “It’s a primary duty to facilitate supportive relationships.”
This is why it’s important to choose someone trustworthy and who has the ability to perform the duties.
"You have to choose somebody who is able to do the job, willing to do the job. Help them out by telling them and advising them what your preferences are in advance. Ultimately the court is there to hear applications where those situations aren’t working out and to intervene."
Don’t be afraid to choose a friend of 40 years over your children, Sweatman said.
"That’s hard, because you’re admitting to yourself that maybe your children aren't what society or what you would want or expect them to be,” she said. "So people automatically think children and they don’t think outside the box and what’s in their own best interest.”
“Lawyers do a disservice to their clients because they don’t explore the circumstances enough when it comes to power of attorney.”