Powers of Attorney – what are they?

Powers of Attorney are documents which allow others to make decisions and act on your behalf in certain situations. 

 Powers of Attorney – when are they used ? 

 They are used when you are not able to, or don’t want to, look after your own affairs for a variety of reasons, including: 

  •  you are away and some investment or insurance papers need to be signed 
  • you are sick 
  • the hand that you sign your cheques with is broken 
  • you suffer from Alzheimer’s or other type of dementia 
  • you have suffered a stroke 
  •  you are in a coma 
  • you are incapacitated in some other way 
  • you just don’t feel like doing something like paying your own bills  

 Powers of Attorney – what types are there ? 

 There are 2 types of Powers of Attorney: 

  1.  Property or Financial 
  2. – Personal Care 

 Everyone over the age of 18 years should have both a Financial and a Personal Care Power of Attorney prepared. 

  Power of Attorney – Financial: 

 This Power of Attorney covers such things as: 

  •  bank accounts 
  • investments 
  • paying of bills 
  • dealing with your house 

 Your Financial Power of Attorney is effective whenever you want it to be.  In other words, you can be perfectly capable mentally and still have your Attorney for Property handle some or all of your financial affairs for you if that is your wish.

Power of Attorney – Personal Care: 

 This Power of Attorney covers such things as: 

  •  health care, including:
    • talking to your doctor 
    • consent to medical treatment on your behalf 
    • following your instructions regarding life support 
  • nutrition 
  • shelter 
  • clothing and hygiene 
  • personal safety 

 Your Personal Care Power of Attorney is effective only when you are NOT mentally able to understand information which is relevant to your personal care or you are unable to appreciate the consequences of a decision or lack of decision.  Thus, the effective date of your Personal Care Power of Attorney is different from your Financial Power of Attorney. 

How Many Attorneys Should You Have ? 

 Consider this situation: 

  1.  You name only one person who is considerably younger than you to be your Attorney. 
  2. Later you suffer from a dementia which prevents you from changing your Power of Attorney. 
  3. Your sole Attorney contracts cancer and dies a few years later – while you are still alive. 
  4. At that point you do not have any Attorney who can act on your behalf.  Therefore, essentially you do not have any Power of Attorney.  The last section of this article talks about what happens if you do not have a Power of Attorney. 

 You should have a minimum of two Attorneys.  One of your Attorneys might be away on vacation and hence unavailable.  One of them might suffer a stroke or have some other serious illness.  One of your Attorneys might die before you do. 

 The Power of Attorney should also allow any one of the Attorneys to act on your behalf.  In other words, you do not want all of them having to act together. 

 Who Should you Name as Your Attorneys ? 

 The first – and most important – answer is: 

 Someone you can trust. 

 Your attorneys can be your spouse or partner, some or all of your children, other family members, or close friends who know you well. 

 In the case of your Financial Power of Attorney, you could name a Corporate Trustee. 

 What Happens if You Do Not Have a Power of Attorney ? 

 If you do not have a Financial Power of Attorney, either: 

  •  the Public Guardian and Trustee (an agency of the Ontario Government) will be appointed 

 or 

  • -the Superior Court of Justice will appoint someone to make decisions for you 
  •  that person is called the Guardian of Property 

  There is a provision for someone else – such as a family member – to apply to the Public Guardian and Trustee to take over the duties from the Public Guardian and Trustee.  But that takes time. 

 If you do not have a Personal Care Power of Attorney, an application must be made to the Superior Court of Justice to have someone appointed to be your Guardian of the Person. 

 Court applications take time and can be expensive.  And the Judge may appoint someone whom you would not want to have looking after you or your personal affairs.