By Chie Takano Reeves
A seminar on the basic knowledge and importance of Power of Attorney and Wills was held on November 27th, 2014 at the Japanese Canadian Cultural Centre, co-sponsored by JSS and Momiji Health Care Society.
Participant numbers quickly reached the cap of 25 individuals, and as a result, we decided to eliminate tables to make room for another 25 participants. Within 3 weeks, we had 50 participants register as well as 30 on a waiting list. This clearly demonstrated our community members had strong interest in this type of seminar.
Ms. Nozomi Zoe Smith (J.D., LL.M), an Ontario estate lawyer at Dermody Law who was educated both in Japan and Canada, was invited as a guest speaker to lecture on basic legal information of Power of Attorney and Wills. The lecture was provided in Japanese and there was a Q&A session at the end of each topic. After the seminar, Ms. Smith also provided some time for addressing individual participants’ personal concerns related to these topics.
The term, Power of Attorney (POA), can be an unfamiliar concept especially for individuals who came from Japan. POA is a legal document appointing specific individual(s) to make decisions for someone who has lost the mental capacity to do so independently. The individual(s) who are appointed as one’s decision maker(s) is also called POA. There are two types of POA – POA for Property (POAP) and POA for Personal Care (POAPC). You can appoint the same person for both POAs or you can have one for each situation. Multiple persons can be appointed in one POA document.
What would happen if one does not appoint a Power of Attorney?
In the case of a POAP, (1) your properties/assets may be unofficially controlled by your friend or relative; (2) someone may apply to the court to become a Guardian of Property; or, (3) Office of the Public Guardian and Trustee may be appointed to manage your properties/assets by the system of statutory guardianship.
For a POAPC, substitute decision-makers (SDMs) will make partial decisions on your behalf. Who can become a SDM is determined by a hierarchal order of relationship a person has with you, as set by the Health Care Consent Act.
It would be ideal if someone who suddenly became your decision maker can make decisions that match your wishes, however, this may not always be the case. For example, people often want to appoint their immediate family as their POA because it seems to be a natural fit. Sometimes people closest to you may be incapable of making sound decisions on your behalf. For example, family members may be experiencing a considerable amount of grief and distress and this would incapacitate them from making important decisions. It is recommended that one chooses carefully who to appoint for a Power of Attorney to ensure that this person will execute the process according to one’s original wishes. Appointing substitute attorney is also recommended to prepare for such example to occur.
The process of preparing how you would like to be cared for is called Advance Care Planning (ACP). JSS and Momiji are planning to provide a workshop in Japanese in June 2015 to learn about ACP and how to make an Advance Care Directive. This is aimed at supporting individuals in the clear communication of instructions on care when speaking to family members and health caregivers. Stay tuned!
It is important to clarify that POA takes care of decision making when one is still living. On the other hand, a will takes care of one’s wishes after the individual has passed away. Both have to be made while one is mentally capable of making informed decisions.
In Japan, without a will, heir(s) can almost automatically receive their inheritance with a certain rate determined by the Japanese estate law. It could be difficult for some people from Japan to comprehend what might happen if one does not have a will at the time of death. In Canada, each province has its own laws to determine how much heir(s) receive if there is no will or if the will does not state otherwise. However, without a will, the provincial government can confiscate the properties/assets of the deceased until an heir(s) applies to the court. When doing so, one must prove his or her relationship with the deceased and the process may also necessitate finding all potential heirs. As one could imagine, this is a very lengthy and costly process. To prevent the incurrence of hefty legal costs and time spent in court, one is advised to write a will.
Do you wish to protect your loved ones from various problems and suffering related to decision-making or reciving their inheritance? It is never too early. Start planning today to set up your POAs and a will. To assist individuals in this process, JSS will continue providing this seminar with Momiji.
In addition, the articles, Basic Information on Estate Law, in which Ms. Smith writes for Nikka Times, describes the POAs and Wills well in a easy to understand way with relevant examples. Please visit the link below to access her articles (in Japanese).
Below are the links to download the legal information booklets on POA published by Community Legal Education Ontario (CLEO), translated by JSS. Please feel free to distribute widely.
Continuing Power of Attorney for Property
Power of Attorney for Personal Care