Overview
Bob and Jane are both in their early 70s. In 2008, with a downturn in the American economy and the relative strength of the loonie (the good old days), they purchased a condo in Phoenix.
As Bob and Jane are both retired, they decided to live six months of the year in Phoenix and six months in Winnipeg. They opened a bank account in Phoenix, found a local doctor that they were comfortable with and made plans to do a lot of golfing. They made sure their travel insurance was up to date and thought that they had taken into account all contingencies.
Last winter, unfortunately, Bob suffered a stroke while in Phoenix. Jane immediately called her lawyer in Winnipeg and asked if he could send down a copy of both a Power of Attorney and Healthcare Directive that Bob had prepared years ago. It was at this point that Jane learned that both documents were of little value while they were in Arizona.
A Power of Attorney document permits a third party to take control of your assets and make financial decisions should you become incapacitated. Under Manitoba law, you have the right to accept or refuse medical treatment. Should you become unable to speak or otherwise communicate your wishes, a Healthcare Directive provides instructions to a member of your family to make medical decisions for you. Most, if not all, provinces and states of the United States have a form of Healthcare Directive legislation similar to that of Manitoba’s.
Most provinces recognize Healthcare Directives and Powers of Attorney executed in Manitoba, but there are exceptions. For example, New Brunswick, Prince Edward Island, Newfoundland and Nova Scotia do not have a provision in their Power to Attorney for property or equivalent legislation that specifically recognizes the validity of “foreign” Power of Attorneys or Healthcare Directives. Quebec as well has special rules with respect to Healthcare Directives. Accordingly, much more caution must be exercised if you are travelling to the Maritimes or Quebec for any extended stays.
If you intend to stay for any length of the time outside of Manitoba, it is important that the person you name in the Healthcare Directive and Power of Attorney is also travelling with you. Sometimes Power of Attorney and Healthcare Directive name individuals other than your spouse.
While Arizona will recognize a Healthcare Directive which would include a living will, a pre-hospital medical directive and a durable mental healthcare Power of Attorney prepared in another American jurisdiction, Arizona law does not recognize a Healthcare Directive or a Power of Attorney prepared in another country including Canada.
Similar laws exist in Florida and although there may be an argument in California that a “foreign” Healthcare Directive or Power of Attorney may be valid, problems are likely to be encountered in dealing directly with financial institutions or hospitals if you find yourself in the same set of circumstances as Bob and Jane.
Lawyers now recognize that many “snowbirds” simply do not appreciate the potential risks associated with their travel plans. The remedy is to explore whether a Power of Attorney or Healthcare Directive ought to be prepared by a lawyer practising in the jurisdiction where they intend to stay for an extended period of time.
As in the case of Bob and Jane, the need to gain access to a bank account and to deal with healthcare issues often comes about suddenly and in a crisis setting.
Whether the snowbirds’ destination is Florida, Arizona, California or any number of southern destinations, one must be mindful that each jurisdiction will have its own unique laws and requirements concerning banking, property and health needs. The cost for a short consultation with an American lawyer will likely be modest and a small price to pay for peace of mind.
It is suggested that before leaving for your extended stay at your southern home, you consult with your lawyer in Manitoba to determine what he or she recommends you do to ensure that your property and health issues have been properly addressed before you leave.