Planning for Incapacity


With advances in science and medicine, people are living longer than ever before, especially in developed countries such as Canada. As the saying goes: “Growing old is a case of mind over matter: if you do not mind, it does not matter.” Or does it? People on average will outlive their good health by up to 13 years, according to Statistics Canada.

This means that most Canadians can expect to live with less-than-optimal health, declining cognitive abilities and a greater reliance on trustworthy (or untrustworthy) family members for more than a decade. How can we prepare ourselves for old age and smooth out its pitfalls? How can we be prepared enough so that aging becomes a slow and gentle slope? To understand further, let us consider the following example.

Rita is a 67-year-old widow with two independent adult children and two grandchildren. She owns her long-time Montreal home outright, has no debts, and has her investment portfolio with Pembroke. She is currently retired and receives her Quebec Pension Plan (QPP) and Old Age Security (OAS) benefits, as well as her deceased husband’s private pension. All of her lifestyle expenses are covered by her monthly retirement income.

Her adult children do not get along and the childfree one is more financially savvy than the other. However, she gets along with both and spends time with them regularly. Recently, Rita learned that she may be at higher risk for early-onset dementia than most people. She wants to know what she can do to protect herself if she ever becomes incapacitated in the future.

Update Her Will

Rita last updated her will in 2000, naming her now deceased husband as the executor. At the time, her children were still too young to be named as alternate executors. Today, Rita is at risk of not having the executor she wants since her deceased husband cannot act as the executor anymore. This means that her now-adult children would need to petition the courts to be named executors, which could cause problems between the siblings, since they still do not get along.

The best course of action for Rita in this case is to update her will, indicate whom she would now want to be the executor, and also name an alternate executor. In addition, she could look into taking advantage of the online will registries that many provincial governments have created in the past few years to increase access to wills by family members.

Powers of Attorney

Rita does not currently have in place a power of attorney for property, nor a power of attorney for personal care. This means that, right now, should she become unable to make her own decisions, a guardian may be appointed by the courts to make decisions on her behalf, and that person may not be who Rita wants. In some cases, a guardian may even be paid a percentage of her assets, which may deplete her lifetime assets quicker than expected.

One possible course of action would be to name her financially savvy adult child as her attorney for property, and to name her other adult child as her attorney for personal care. As a final precaution, she could also look into naming them each other’s alternate attorneys in case one of them passes away prematurely or moves far away.

Advance Medical Directives

Rita has personal preferences when it comes to medical procedures, because of her beliefs and religious affiliations. Not having her advance medical directives in place may create a situation that conflicts with her wishes if she become incapacitated. Some of her wishes include consenting to blood transfusions only under life-threatening situations, and specific end-of-life care treatment options.

Currently, should she become incapacitated, medical practitioners would be able to do what they believe will provide the best medical outcomes, regardless of her wishes. In this case, Rita could inquire about filling an Advance Medical Directives in Case of Incapacity to Consent to Care form, or have a notarial deed prepared to that effect. Advance medical directives are binding, meaning health professionals must comply with them.

Important Instructions for Digital Assets

On a lighter note, although Rita is 67 years old, she is remarkably tech savvy compared to her peers. She has a personal blog about English poetry, uses several social media platforms, online banking and investment management applications, owns a Dropbox account to store travel and family photos, etc.

At the moment, should she become incapacitated, there would not be an easy way for her adult children to access these digital assets. To solve this issue, Rita could look into adding a memorandum to her will and a digital assets clause to her power of attorney for property. With this in place, even in the unfortunate event of her incapacity or death, her family would be able to ensure that her words and memories are dutifully remembered.



These suggestions do not constitute personalized financial planning, and it is recommended to seek legal advice from an expert should you want to optimize your financial situation. The methods outlined here are only meant as a broad discussion to help you get a head start in your incapacity-planning journey.

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