What are Powers of Attorney? Why are they so important?
Let's take a look at one of the most important estate planning documents that you can have; Powers of Attorney.
What Are Powers of Attorney?
A Power of Attorney is a legal document that gives an individual the authority to make decisions on the grantor’s behalf for convenience or when they are no longer capable of making those decisions for themselves when they are alive. This is in contrast to a will which takes effect when the testator dies. Incapacity can occur at any time in a person’s life. Think of Powers of Attorney as a type of disability insurance, you may never have to use them, but you’ll be happy to have them if you do. The person you choose for your Power of Attorney should be someone that you trust - usually a spouse, relative or close friend.
There are two types of Powers of Attorney in Ontario:
1. Power of Attorney for Personal Care
Your Attorney for Personal Care is someone that will make decisions regarding your health care. This can include decisions about your housing, nutrition, hygiene, and safety. They are also responsible for life support measures. Ontario law states that your Attorney for Personal Care must follow the wishes set out in your Power of Attorney for Personal Care document; you can help your Power of Attorney make those choices by laying out your wishes in advance. You may be closely following medical assistance in dying measures (MAID) and the law. Currently your Attorney cannot make MAID decisions for you but the criteria to enter has recently expanded so please continue to check in with our firm over time as the law evolves.
2. Power of Attorney for Property
Your Attorney for Property is someone that will make decisions regarding your property and finances. Did you know that you can have multiple Power of Attorney for Property documents applying to different jurisdictions? It is recommended that if you spend considerable time in another province or country for certain periods of the year (snowbirds, for example) that you look into obtaining these documents in the visiting jurisdiction to work in tandem with your Ontario documents. Please feel free to reach out to our firm for any questions about this.
Who Can Act as Attorney?
For Power of Attorneys for Property your attorney must be at least 18 years old; for Power of Attorneys for Personal Care the age minimum is lowered to 16. The attorney must be of sound mind and willing to assume the role and understand what it means to assume the role. Unless a spouse or family member, the Power of Attorney for Personal Care cannot be providing health care (or related services) to the grantor for compensation; the reason being to avoid a member of stuff at a health care facility (or something of a similar situation) from taking advantage of patients.
Should You Have One?
If you are over 18 there is no reason not to have one, in fact young adults 18 and above should have these in place before moving out of the house for school or work. You may think that you are young and healthy, but Power of Attorneys are not exclusively for the elderly. You never know when an accident could occur and having a Power of Attorney in place for life’s “what ifs” will save your family unnecessary distress and cost.