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Tom B.
Tom B., Barrister & Solicitor
Category: Canada Family Law
Satisfied Customers: 2415
Experience:  25 years in practice.
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On behalf of my aging parents where only a Last Will and Testament

Customer Question

on behalf of my aging parents where only a Last Will and Testament exist..
one has become unable to make decisions due to dimentia and stroke... The other is strong and healthy.
A capacity assesment has been supplied by the attending physician.
It has now been reccomended that we go thru the process of applying for guardianship and trustee as well as appointing alternate thru the court system which is very expensive.. for seniors on very limited income.
They do own a home but no other investments.
He is at home now but in the process of being placed in long term care with in the year.
Our concern is that there is no power of attorney or personal directive.. what is the impact or risk of not applying?
Is this really necessary?
Is there a less expensive alternative to guardianship if this is the path we need to take.
Submitted: 2 years ago.
Category: Canada Family Law
Expert:  Tom B. replied 2 years ago.
I have dealt with such matters and they are not easy.
But someone has to step in and assist in decision making and protection of their property. A potentially less expensive option in asking the Public Trustee to take over. This is a government body but they do charge fees. If you tell me your province I will look into that.
Otherwise, getting through the courts can be done without a lawyer but the person doing so has to commit to learning the process and the rules. It can be done however.
Customer: replied 2 years ago.
I'm in Alberta,
so basically you're telling me this has to be done...
it doesn't make sense that this wouldn't just default to his spouse...
Expert:  Tom B. replied 2 years ago.
No I am saying that professionals knowing the facts are telling you that someone has to step in. If so, the court nominating a trustee or the Public Trustee are the only two options. But I cannot comment on the necessity of either.
For instance, if Dad is sound of mind and they have joint bank accounts then he can pay bills. The health care system always considers the next of kin in suggesting health care choices. If the house they own is in "joint" names then regardless of what is in a Will, the house automatically goes to the surviving owner.
Many people go through what you are without having to take these steps. While matters do not automatically default to the other spouse at law, in practicality, they do and perhaps no steps need be taken. I took your question as being an absolute necessity. But if there is no reason then there is no reason. If all affairs are taken care of then perhaps there is not.
Perhaps if Dad falls ill then matters could change. But if someone can pay te bills and give input on care, then why?
However, here is a link to the Public Trustee office just for your information.
Also, here is a link to the Lawyer Referral Service. If you call and explain the details of your problem, you will be given a few names of lawyers who have agreed to consult initially at no charge.
Special procedures may in fact be unnecessary. But it is all fact based and I can't know all of the facts. It sounds to me like everything is under control for now but I am concerned you have gotten professional advice to the contrary.
But you are very correct in not just jumping in and perhaps wasting money. I admit on the limited facts I know that I cannot see a problem.