Power Of What Now? An Introduction To Powers of Attorney

What Is A Power of Attorney?

When you talk to a lawyer about wills & estates, they will probably ask if you want to draft a power of attorney for personal care and a power of attorney for property. These two documents are some of the most crucial and influential documents when it comes to end of life planning. However, despite the importance of these documents, most Canadians do not have powers of attorney and many do not even know about these documents.

What is a Power of Attorney?

A power of attorney is a document that gives a third party the right to make decisions on your behalf when you are unable to do so. In the context of estate planning, the documents usually come into effect when you are not capable of making your own decisions. In situations where age, disease, trauma or medication has rendered you unable to give consent, your power of attorney allows your loved ones to manage your property and personal care. These documents help give you a degree of control to ensure your wishes are respected when you no longer have capacity.

Power of Attorney for Property

The power of attorney for property assigns a person of your choosing (your “attorney”) to make decisions related to your finances and property. The person you elect to make these decisions will be responsible for managing your finances and paying your bills while you are alive. It is important to note that a power of attorney for property is not a will. Your attorney’s power over your property will end in the event of your death.

Power of Attorney for Personal Care

The power of attorney for personal care assigns a person as an attorney to manage decisions related to your personal care. The person you elect as your attorney will be able to hire a nurse to visit you regularly, put you in a nursing home and make key medical decisions on your behalf. Your Power of Attorney for Personal Care may even be able to make key end of life decisions on your behalf related to stopping treatment and life support.

How to choose who will act as your attorney

Part of drafting powers of attorney is choosing people you will elect as your attorneys. With some exceptions, most people over the age of 16 who are mentally capable of making decisions can act as your power of attorney. However, there are a few things to consider when electing your power of attorney.

The first question to consider when choosing someone to act as your attorney is, “Will this person accept the responsibility when the time comes for them to act as my attorney?” If the people named in your power of attorney refuse to act, arrangements will be made as though you have not assigned anyone to act as your attorney at all. Therefore, it is important to talk to the people you elect to act as your attorneys and know that they are willing to act in this capacity.

The second question you must ask when choosing an attorney is, “Do I trust this person to respect my wishes?” Powers of attorney for property and personal care give broad powers to the people acting as your attorneys. You need to be choose people who you trust will ensure you are properly cared for and will protect your finances when you can no longer make decisions. One way to help ensure your attorneys act according to your wishes is to elect multiple people to act together as your attorneys and establish a decision making process. For example, you may choose to elect your two children to be your attorneys and require them to make decisions unanimously.

The third question you must ask when choosing an attorney is, “Does my attorney know my wishes?” Many people find themselves acting as an attorney and being unsure as to what the person they are acting for would have wanted. This uncertainty can lead to poor financial planning or you being subjected to medical procedures you would never have wanted. Therefore, you need to talk to your potential attorneys about your wishes. Your lawyer can also help you write down instructions for your attorneys (I will discuss these instructions, sometimes called an advance directive, in a future blog post) or limit the decision making capacity of your elected attorneys to ensure that your wishes are respected.

Contact a lawyer to help you draft your Powers of Attorney

The above questions will start you on the path to choosing the people who will be your Attorneys if you become incapacitated. However, there are always more things to consider when planning and drafting your Powers of Attorney. A lawyer can guide you through the process of drafting your Powers of Attorney and ensure that your wishes are respected if you ever become incapacitated.

Contact us at info@law365.ca or 647-494-9599 to talk to a lawyer about drafting your Powers of Attorney for Property and Personal Care.