Q. What is a Power of Attorney?
A Power of Attorney is a document that allows someone (referred to as a donor) to have some control over their affairs if they become incapable. By giving a Power of Attorney to a trusted person while you are still capable, you as the donor are able to control your property and direct your personal care even after you cannot make decisions for yourself. In other words, even if you become incapable, you can maintain some control over your personal and financial affairs through someone you trust.
The advantage of having a Power of Attorney for Personal Care, commonly called a “living will”, is that you as the donor can leave instructions as to what medical treatment you would like if you cannot make these decisions at the time. This should provide some comfort to you. At a minimum, it should reduce delay and uncertainty as to who has the authority to act on your behalf.
If there is no Power of Attorney (neither for property nor for personal care) and you become incapable, the government via the Office of the Public Guardian and Trustee will take control of your assets and appoint a guardian to determine who can look after your affairs. This guardian might not be someone you would have chosen. You may not even like them. Increased cost and delay are likely outcomes of lacking a valid Power of Attorney. If more than one person is appointed to be your guardian, bad feelings, and even litigation are potential outcomes.
There are essentially two types of Powers of Attorney – a Continuing Power of Attorney for Property and a Continuing Power of Attorney for Personal Care.
Q. What is the difference between a Power of Attorney for Property and a Power of Attorney for Personal Care? Do I need both?
A Continuing Power of Attorney for Property grants someone (called the attorney – not to be confused with the American term for “lawyer”) the power to act for you either generally or in some limited way. You can specify this in the document – such limitations might be only to sell real property or do your banking, for example.
A Continuing Power of Attorney for Personal Care is used to deal with medical and health matters. This document creates a relationship giving someone the authority to act on your behalf. It permits a third person to rely on these instructions as if you gave the instructions yourself.
Q. What is the difference between a Power of Attorney and a Will?
A Power of Attorney is only relevant and applicable while you are alive. Upon your death, this document dies with you. At this point, your Last Will and Testament is the document to which your loved ones would refer to carry out your last wishes.
Q. Do I need a Power of Attorney?
If you would like to ensure that, if you become incapable, your health and your property will be looked after according to your wishes – YES!
Without this document, your incapacity may prompt intervention from the Public Guardian and Trustee.
Q. Who should I choose as my Attorney? Can I select multiple Attorneys?
There is no legal limitation on the number of persons you can appoint, though there are certainly practical ones.
It is quite typical to have one person named as the primary attorney alongside a substitute. It is also possible to have more than one named as a back-up. It is also common to name two or more as the prime attorneys with substitutes.
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If you name more than one attorney in your Power of Attorney, they must all act together and cannot act alone unless you specify otherwise. This sword has a double edge and can unnecessarily complicate matters – don’t hesitate to get in touch with me directly to discuss your concerns.
Truly, there is probably no ideal attorney. Appointing a family member with your accountant, lawyer or financial advisor may offer a combination of personal and professional insight and, more importantly, balance.
Some donors are quite secretive about their estate plans and do not enjoy discussing them with loved ones. This can create uncertainly! It can be a recipe for future family and financial discord, sometimes with unintended or disastrous consequences. I encourage my clients to be open and honest with their loved ones about their wishes.
Q. What do I do with my Power of Attorney once it is signed?
Unless the original document is given to the attorney and they have physical possession of it, they will not be able to use it. This is another double-edged sword. It is possible that some medical or financial emergency might arise which requires action by the attorney and any delay in obtaining the document(s) may well be problematic. On the other hand, there is no reason to be concerned that the attorney will misuse the document if they do not have possession of it.
It is possible to leave the document with your lawyer, for instance, giving them instructions permitting delivery of the document to the attorney upon the happening of a certain event (for example, a loss of capacity). How lack of capacity is determined then becomes important and deserves careful attention in the legal drafting.
If you choose to provide the document to your appointed attorney(s) immediately after it is signed, it is sometimes advisable to deliver a copy of the Power of Attorney to your financial institutions. Be sure to have the financial institution confirm that they have received a true copy of the original and that they will keep it on file. Later, should the attorney(s) loose or misplace the document, there will be fewer negative consequences. More importantly, however, this is a good way to minimize the risk that the authority of the attorney named in the document will be questioned by the financial institution later.
Q. Can I write my own Power(s) of Attorney? What about downloadable Power(s) of Attorney from the internet?
Completing an online Power of Attorney form, even one from a government website, is not advisable for very many reasons.
These basic forms do not take into account the complexities of modern family structures. Financial institutions are also less likely to recognize these forms as valid which may cause problems when it comes time to execute the documents.
A Living Will comprises an integral portion of the Power of Attorney. Downloadable Powers of Attorney for Personal Care very often lack this section. A Living Will directs your Attorney to authorize your medical professionals to either take extraordinary life-saving measures OR to explicitly prohibit them from doing so. You can see why this section should not be overlooked!
Do you have questions or would like more information on this or other issues? Do not hesitate to give me a call at my office directly – 416-698-1157.
