Powers of Attorney

by | Apr 29, 2013 | Publications

Powers of Attorney

A Power of Attorney for Property may save substantial time and money in the event of incapacity or an extended time away from home and is relatively inexpensive. The word Attorney in this context does not mean lawyer. A Power of Attorney for Property is a simple written document that allows someone else financial management of some or all of your property while you are alive. It can become effective now and continuously, for a limited time, or only in the event of incapacity. It can be limited to dealing with all or only certain assets of yours. The document should additionally provide for an alternate or fall-back attorney. It can provide for one person or a number of people as attorney. You can protect yourself to a greater degree by requiring that two people act together as your attorney. A bank Power of Attorney only deals with assets at that institution.

Most people should take the simple precaution in this very complex and hurried environment in which we live of having a Power of Attorney for Property. Failure to have such could result in a costly court application to have ones affairs managed. You do not want the Ontario Public Guardian and Trustee in your affairs. Any mentally capable person over 18 years of age may grant such power to a person over the age of 18 years. The Substitute Decisions Act mandates that the attorney appointed acts diligently with honesty, integrity and good faith. Compensation is payable to the attorney at rates specified in the Regulations to the Substitute Decisions Act unless prohibited in the Power of Attorney. A higher duty of care is imposed when compensation is payable. Your attorney cannot, however, make or change a will and sign it for you. Your property still belongs to you but it is managed by your attorney. A Power of Attorney for Property does not allow your attorney to make decisions concerning your personal care.

A Power of Attorney for Personal Care is sometimes referred to as a Living Will. It is a relatively new legal document statutorily provided for under the Substitute Decisions Act. You may now designate a substitute decision maker(s) to make decisions for you relative to your continuing medical, dietary, housing, clothing, safety, hygiene or health needs in the event of your incapacity. This Power of Attorney is not valid until the person granting the power is incapable of making his/her own decisions relative to personal care. In the Power of Attorney for Personal Care you may:

  • express a wish that you not be kept alive through heroic measures and/or if there is no reasonable prospect of a satisfactory quality of life;
  • what steps should be taken to preserve life;
  • give authority to consent to or refuse treatment;
  • where you want to live, what food or medicine you will take;
  • under what conditions you would consent to certain kinds of medical treatment;
  • the quality of health care you want to receive;

The substitute decision maker (attorney) should, but need not, follow your wishes as expressed in the Power of Attorney for Personal Care or, if the attorney thinks you might have changed your mind, such person can apply to the Consent and Capacity Board. To sign a Power of Attorney for Personal Care you must be at least 16 years of age and have the mental capacity to understand the nature of this grant. The best advice concerning such a document comes from an impartial professional. The person you appoint should be someone you know well, whom you trust completely with your personal decisions and be at least 16 years of age. You may not appoint someone who provides you with “health care or residential, social, training or support services for compensation” unless that person is your spouse, partner or relative. It is important to realize that the attorney appointed can only make decisions that you are unable to make. If you do not put in special instructions, your attorney then must make decisions according to what he or she believes to be in your best interest at the time. It is wise to appoint an alternate or back up person in case the primary designate, for any reason, cannot make a decision. You do not want to have to go back to the lawyer to prepare another document (and fee) when it can be dealt with easily in the first place. This document does not allow your attorney to make financial decisions concerning your property, except inferentially, by deciding on your care.

You have the right to revoke (cancel) either type of Power of Attorney at any time, as long as you are capable, but such revocation must be in writing with two witnesses present when you sign, the same as needed for a Power of Attorney. Such witnesses must sign with you present as well.


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