It’s Still My Decision! (isn’t it??)

Photo by Wolfgang Zenz

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As the Baby Boomer population ages, we see more and more cases of adult children looking at their parents’ assets as ‘their’ inheritance.  Children sometimes feel threatened by decisions that Mom or Dad might make about transferring an asset or assets into joint ownership with one child.

Mom or Dad may have very good reasons for doing this but other children will often regard such a transfer as the result of influence being improperly exerted on Mom or Dad by the joint-owning child. This can result in expensive legal actions in which Mom and Dad are virtually ignored and their decisions challenged on the basis that they are incompetent – usually based on nothing more than the fact that they are ‘old’ and showing signs of short term memory loss or even some dementia.

The law in BC makes it clear that every adult is presumed to be capable and competent and that specific procedures and policies must be followed before their decision-making ability is taken away from them.

However, in practice, more often than not these ‘safeguards’ are ignored. In fact, where older adults are concerned, the health care industry (including medical practitioners, nurses, care aids, care facilities) presumes instead that they are ‘incapable’ and looks to family members to make decisions for them – without even bothering to first take the time to ask them what they would like to do.

In the face of complaints of ‘abuse’ (usually, financial), it is becoming increasingly apparent that the procedures put in place by the legislation can themselves become abusive of the rights of older adults, with those rights not just being ignored, but in some cases, trampled upon.

An older adult may have other health issues that can affect short term memory, cause some mental confusion or reduce the ability to resist pressure from a family member. None of these necessarily means that the older adult is not able to make their own decisions in the appropriate circumstances. Often just time is needed to explain the situation to the older adult and help them understand it, as well as their options and potential consequences, so that they can make a decision. It is unfortunately easier (and faster) for those in positions of power and authority to bypass the older adult and deal with a family member.

Having a lawyer guide you through the necessary steps to create a valid and enforceable Representation Agreement and/or an Enduring Power of Attorney and to fully document the transfer of an asset to joint ownership or even to sole ownership in another person to the exclusion of others is of course advantageous.

This will provide some comfort to older persons that they have made their wishes known, have given their reasons for the decisions they have made, and that there will be someone there to advocate on their behalf and to invoke their legal protections should a decision be challenged on the grounds of alleged incompetence.

As an older adult, how do you make it clear that this is YOUR decision and you expect it to be respected?

Whether you’re 45 or 85, it should not make a difference how your decision is treated but, in reality, it does. The older we get, we become not only more invisible, but less credible in the eyes of younger people, including our own children.

There is law on the books and there are policies in all organizations and institutions, but it seems that a change in attitudes towards older people is required so that older people and their decisions will be treated with the respect and dignity they deserve.

Remember that we will all be in their position sooner or later so we should be working together now so that those attitudes will have changed by the time we get there.

If you are an adult child of older parents, ask yourself how you would feel if your teenager or twenty-something questioned your decisions about, for example, selling or renting out your property, buying or leasing a new car, who has access to your bank accounts, why this child shouldn’t get exactly the same treatment as you’ve given to another child even though their circumstances are quite different (i.e. tuition and expense for university, a car to get to work, setting them up in their first apartment, etc.).

It’s not likely that you would put up with this, is it?

So think about why it is okay for you to tell your elderly parent that they don’t know what they’re doing and they have no right to deal with their own assets as they see fit. Put yourself in their place and really think hard about this.

  • What gives you the right to suddenly control their lives, in all aspects?
  • Do you have the right just because you think they would never have made that decision if they were truly competent? How do you know that?
  • When does your interference, which may be made in a good faith belief that you’re protecting them from what you think is abuse, become abusive in itself?

For further information or to discuss your own situation, whether you are an older adult, becoming an older adult, or the child of an older adult, we are here to help. Contact us here.

Legal Disclaimer: The general information provided in this blog does not constitute legal advice to you and is provided strictly for informational purposes only on an “as is” basis. Legal advice pertaining to your particular situation can only be provided to you if we have met with you personally to obtain all pertinent background information necessary to give you a formal legal opinion. If you wish to have formal legal advice about your matter, please make an appointment with us for a consultation. No lawyer-client relationship is created by your use of our blog or our website.

Although Railtown Law intends the contents of its blog and website to be accurate, complete and current, and does it best to ensure that it is, Railtown Law does not promise or guarantee that it is. Railtown Law is not responsible and will not be liable for any errors, omissions or delays in this information or any losses, injuries or damages arising from its display, use or any links provided. Railtown Law welcomes feedback from its readers noting any errors or omissions in the information provided in its blog or on its website.


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