The Sandwich Generation


The “Sandwich Generation” refers to those who are simultaneously caring for children and elderly parents.  This generation is facing multiple challenges.

In June 2014 I was a panelist in a round-table discussion on issues facing the Sandwich Generation which was hosted by Christian Steinbock of RBC/Dominion Securities.  Also on the panel were Audrey Miller of Elder Caring Inc. and Indra Bharat a financial planning consultant with RBC Wealth Management Services.

Elder Care Issues

Audrey Miller stressed that most people want to remain in their own home for as long as possible.  She covered a wide variety of public assistance options and supports available to enhance the safety and comfort of the elderly who live in their own homes.  These individuals are at increased risk of injury.  As a result, significant public resources are available to minimize the risks of remaining at home.

Audrey also explained the alternatives to remaining in one’s own home and options available for couples who have divergent needs (eg. a couple where one is deteriorating physically and/or mentally and where the other is still healthy and well, but becoming overwhelmed by providing care).

Financial Planning Issues

Indra Bharat confirmed the observations about the preference for remaining in one’s own home.  She provided a number of simulated financial plans indicating the effects of remaining in the home and the likely benefits of down-sizing and the projected timing.

Indra also surveyed the available options for home financing and when this should be considered and by whom.

Legal Issues

The most fundamental legal issues were those around alternate decision makers. A Power of Attorney for Property is necessary for someone else to make decisions and act on behalf of another on financial and property issues.  A Power of Attorney for Personal Care is necessary for someone else to make decisions regarding health, medical treatments or end of life.

It is, of course, advisable to have these documents prepared while competent.  Failing which a guardianship application may be required or the Public Guardian of Ontario may take control.

Capacity Issues (Levels of Capacity)

Legally, there is a spectrum of capacity.  A medical diagnosis, such as dementia, does not mean that a person lacks capacity.  In terms of appointing an alternate decision-maker, the law is permissive rather than restrictive.

An individual may be incapable of conducting financial transactions but capable of signing a POA.  To sign a POA for Property, a person need only understand that they are incapable of acting on their own behalf and require the assistance of another.

Timing is also important.  Many people have “good” and “bad” days.  A person may be capable of signing a POA on a “good day” and a document will be valid if signed during a “window of capacity”.  In such cases evidence of capacity will be required if challenged.

Capacity Issues (Who conducts the assessment)

Many people rely upon a doctor’s observations of capacity which are often based upon medical diagnoses. Without proper direction from a lawyer, many doctors are not familiar with the varying levels of legal capacity which may be required for different decisions.

Certified capacity assessors are trained to understand the level of capacity required for legal purposes and to assess capacity. They can provide written capacity assessments which are the evidence required to validate legal documents if challenged.

Duties of Powers of Attorney

Another issue facing the Sandwich Generation are sibling conflicts. Christian Steinbock presented a hypothetical in which the sibling bearing the burden of caring for the parents and acting as Power of Attorney also sought to obtain personal advantage and had a gambling problem.

Powers of Attorney for Property have very strict legal obligations to act in the best interests of the “donor” and to account for every transaction undertaken.  It is not difficult to trigger reporting obligations.  If discrepancies or self-dealing are encountered it is not difficult to remove the acting attorney and appoint a substitute.

Prepared by Ismail Barmania of Barmania-Lawyers