Power of Attorney

Continuing Power of Attorney for Personal Property

What is it? It is a legal document to give another person legal authority to make decisions about their finances and property, (not about their personal health or care) if they become unable to make those decisions themselves.

It may be used when you vacation and the attorney may pay your bills, buy items for you from your account (such as medical supplies or nursing home/retirement home fees) deposit your cheques, do your tax return, safeguard your valuables, make a loan, or anything you may legally do with your finances, except sign your Will. Basically, your attorney “steps into your shoes”.

It may also authorize only a specific transaction, for example: listing your house and/or signing the Agreement of Purchase and Sale for you. The person named does not have to be a lawyer (although lawyers are called “attorneys” in the U.S.A.), an “attorney” is simply someone who acts on your behalf by your appointment).

The Power of Attorney is called “Continuing” because it continues to be used after you are no longer mentally capable of making those financial decisions yourself.

It may also be used if you cannot physically handle the finances and need someone to attend at the bank, or anywhere else for you. Most banks have a power of attorney which may be used ONLY to deal with your financial affairs at that bank. 

The POA’s may be limited to a time or task, or give a general blanket authority.

You may appoint sole or joint attorneys, for example: they may be your child and a trust company or your children who will share the job or divide the responsibilities among them. They may act together or separately. Two attorneys offer a “double check” and less risk of inconsistent decisions.

If you appoint joint attorneys, specify how disagreements are to be resolved, otherwise a court application may be necessary. If you want them to able to act separately specify that they will act “jointly and severally” which means “both together and separately”. Otherwise, they must agree on all decisions.

You should appoint substitute or alternate attorneys just in case the first attorney is not willing or able to act. You cannot appoint the Public Guardian and Trustee unless he or she agrees in writing in advance.

If you do not have a power of attorney, the Public Guardian and Trustee may be appointed by the court to manage your property.

The POA will give the attorney authority to act as soon as it is made, unless you specify otherwise. You may still, however, look after your own affairs while mentally capable. You may authorize your attorney to leave it with a trusted third person (perhaps a professional) and give written directions as to when the POA may be released to the attorney. Give the attorney a copy of the POA.

Set a specific start date or a particular event to trigger its use. It may say that it is only effective if you become mentally incapable of managing your property. Give specific directions as to how and by whom this is decided. Otherwise an assessment of your mental health, conducted by qualified assessors, may be necessary.

Your lawyer may provide a complimentary Power Of Attorney if retained to do your separation agreement or divorce.

Power of Attorney for Personal Care

POAPC’s are sometimes called “Living Wills”, because they are thought to be Wills taking effect while you are alive. This is a misnomer. A Will, by definition, takes effect only upon your death.

A POAPC may be used to empower someone else (your attorney) to make decisions for you concerning your diet, clothing, health care, medical procedures, drugs, safety, residence, when you are mentally unable to do so yourself.  It cannot be employed to make decisions regarding your property and finances, although you may appoint the same person to be both types of attorney.

You may appoint different people for different types of decision-making. For example, one for health care and another for personal decisions: food, housing. You cannot appoint the Public Guardian and Trustee (PGT)unless he or she agrees in writing, in advance.

You may make restrictions or provide specific instructions to your attorney. For example, you may specify where you would like to live, or to keep you in own home as long as possible with a caregiver instead of moving to a nursing home.

You may also give the attorney a blanket authority to make all decisions for you.  Alternatively, you may decline treatment such as artificial life supports or the taking of heroic or extraordinary measures, as determined by your attorney alone or in consultation with your doctor(s), a doctor of your attorney’s choosing, a religious adviser and/or family members.

You may specify that your attorney must get confirmation of your incapacity before he/she acts, and how the confirmation is to be obtained (i.e. by your doctor, etc.).

Talk to your attorney and your health care provider about types of medical treatment you might face in the future.

The Attorney is required to follow your instructions, despite his personal beliefs, unless it is impossible for him to do so. If no instructions are provided, your attorney must make decisions according to what he/she believes are in your best interests at the time.

Neither type of POA is filed with the PGT. It is kept in your safe deposit box or other safe place.

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