Appointing multiple attorneys multiplies your risk of legal trouble.
While it is possible for feuding siblings to come together in a family crisis such as a parent’s major health episode, I find that the care issue tends to become just another outlet for historic conflict as brothers and sisters double or triple down on their old rivalries.
That’s why I typically discourage clients from appointing their children jointly under Powers of Attorney for property or personal care.
Considering what a tough job it can be to act under a POA, I can understand why a person may be tempted to pick a team of people to carry the load, but one recent Ontario Court of Appeal case shows how things often play out in reality.
At the heart of the case is a 92-year-old mother who drafted POAs for personal care and property back in 1995, appointing all three of her children jointly.
However, the documents were never needed until the last couple of years, when the woman’s cognitive abilities began to deteriorate. By this time, one of the three children had been living with their mother for two decades and was acting as her primary caregiver.
While two of the siblings secured an assessment that confirmed their mother’s incapacity, their brother claimed that the testing was flawed and changed the locks on the home he shared with the mother, preventing them from seeing her.
In the Appeal Court ruling, the unanimous three-judge panel confirmed a lower court’s ruling that the POAs executed by the mother were valid, including a tie-breaking clause that provides for a biding decision by any two of the attorneys in the event of a disagreement.
The two siblings’ victory in court may ring a little hollow, since a good chunk of the costs associated with the litigation will ultimately be paid out of their mother’s estate after she dies – depleting each of their inheritances. After the Appeal Court hearing, the legal costs are now approaching an eye-watering $150,000.
In my experience, grantors are typically best served by the appointment of a single attorney. You know your children better than anyone, and if it seems like the appointment of one sibling over another is going to cause issues, then it may be best to look further afield to another family member or trusted friend.
If you absolutely have to appoint more than one person under a POA, then an odd number is best, so that you can include a “majority rules” clause to break any deadlock. But even that is no guarantee that things will run smoothly, as this case shows.
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