When it comes to powers of attorney, many hands often make heavy work, especially when siblings are involved.
Considering the immense responsibility that comes with an appointment under a POA, I can understand why grantors are tempted to share the duties among several of their children.
And while it is possible for brothers and sisters to come together during a parent’s health crisis, I find that the POA quickly becomes just another forum for conflict built on a lifetime of sibling rivalry, which is why I typically discourage clients from appointing their children jointly.
One recent Ontario court case, involving a 86-year-old mother who appointed her children as joint attorneys for personal care and property, shows how things often play out in reality.
According to the decision, the mother executed the POAs back in 2020, but was only recently deemed incapacitated following an assessment.
The siblings turned to the court after reaching an impasse over their mother’s future care, with a son insisting that she should move to a memory care suite at a retirement residence, while his sister argued for her placement at an Italian-language long-term care facility.
Without independent evidence of which type of facility best suited the mother, the judge concluded that he should give one of the co-attorneys sole responsibility for the decision over her future residence. As the person who had primarily cared for their mother over the last decade, the sister was best placed to take over as the sole attorney for personal care, the judge wrote.
Although the parties agreed that the mother’s house should be sold, the judge went on to find that it would be best for one of the children to take charge of the process, “given the acrimonious nature of the relationship between the siblings.” This time, he appointed the brother as sole POA for property, but warned that this did not give him “carte blanche to do as he pleases regarding the sale of the property,” ordering the siblings to agree on the terms and conditions of the sale. Given the divided success, the judge suggested each sibling should cover their own legal costs.
In my experience, grantors are typically best served by the appointment of a single attorney, although there is no need to pick the same attorney to handle both property and personal care matters.
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.
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