Episode Summary

In this episode of Estates Made Simple, hosts Gordon VanderLeek and Jenna Carvalho deep dive into one of the more nuanced aspects of estate planning, gifting while someone is still alive under a power of attorney.

When someone loses capacity and their power of attorney becomes active, what exactly can the appointed attorney do? Gordon and Jenna unpack the legal and ethical boundaries that govern financial and property decisions, exploring how these choices affect both the present well-being of the donor and the future distribution of their estate.

They clarify a key distinction: in Canada, an “attorney” refers to someone acting under a power of attorney, not a lawyer and that role comes with serious fiduciary responsibilities. The discussion walks through practical examples, such as whether it’s appropriate to gift personal belongings while the donor is alive, how to manage valuable or appreciating assets, and when it may be necessary to seek court approval to protect everyone involved.

Key Discussion Points

1.        Understanding the Role of an Attorney (in Canada)

2.        Scope of Authority Under a Power of Attorney

3.        Respecting Testamentary Intent

4.        Financial Considerations Before Gifting

5.        Common Pitfalls to Avoid

6.        When Gifting May Make Sense

7.        Legal and Practical Safeguards

8.        Evaluating the Nature of Assets

9.        Assessing the Donor’s Circumstances

Key Takeaways

· Acting under a power of attorney gives broad but not unlimited powers — especially when it comes to gifting or benefiting others.

· Always be mindful of the donor’s testamentary intent and how current decisions impact the future estate distribution.

· Attorneys should evaluate the donor’s ongoing financial needs before gifting or selling assets.

· When in doubt, document everything, seek legal advice, and consider court direction to avoid disputes later.

· Appreciating vs. depreciating assets can drastically change what’s prudent to gift or sell.

· Beneficiary consent and proper records can help protect the attorney from potential liability. For families with disabled children, coordinate trust planning to preserve tax advantages and long-term stability.

· Above all, proactive planning minimizes stress and litigation, ensuring your assets go where you intend. 

Hosts:
Jenna Carvalho
The smartest way to choose an executor.
Guardian Estate Company
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Gordon VanderLeek
Give your family a legacy of protection - Wills, Estates and Trusts.
VanderLeek Law
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