Power of AttorneyWhat is it?Generally speaking, a power of attorney is a document whereby you appoint another person to act on your behalf. The person who is appointed is called the "attorney" which in this sense means something similar to an agent it has nothing to do with lawyers. Under the Substitute Decisions Act there are two kinds of Powers of Attorney in Ontario: Two Types of Power of AttorneyThe first deals with property and finances. A Continuing Power of Attorney for Property is different from other types of powers of attorney because it can be used after the person who gave it is no longer mentally capable. A Power of Attorney which is not a Continuing Power of Attorney, is automatically revoked if the grantor becomes mentally incompetent. The second type is a Power of Attorney for Personal Care. This kind of power of attorney cannot be used until a person is mentally incapable of making personal care decisions. Why Do I Need One?By making a power of attorney, you can plan ahead and be confident that your plans will be carried out if you are declared mentally incapable. The role of Ontario’s Public Guardian and Trustee is to act as substitute decision-maker of last resort for people who have no one else to make decisions on their behalf. If there is no power of attorney, a family member or friend may apply to be appointed as guardian. What does "Mentally Incapable" mean?Under the Act, "mentally incapable" means a person cannot understand information that is relevant to making a decision or can’t appreciate what is likely to happen if a certain decision is or isn’t made. This incapacity could be caused, for example, by an accident or an illness. Incapacity can be a temporary or permanent condition. Why worry about this stuff now?It’s never too early. The Office of the Public Guardian encourages anyone over 18 to establish a power of attorney for property and anyone over 16 to create one for personal care. Many people believe that this issue only concerns the elderly or the terminally ill, or perhaps a patient before surgery. Not so. Anyone can be injured or affected by illness at any time of their life. What if i become mentally incapable?The person you choose as your attorney can take care of such things as paying your bills and taxes, maintaining your bank accounts, real estate and investments, or make decisions about your health care, nutrition, shelter or medical treatment for you. You can choose anyone you want as your attorney a relative, a friend or someone else as long as he or she is at least 18 years old. How do I choose an Attorney?Your attorney should be someone you know well and that you can trust completely, with good judgment and able to manage your finances and property. You should ask that person whether he or she is willing to be your attorney. Discuss what the responsibilities will be and how you want your affairs handled. Before you decide, you may want to talk to your family or close friends, your financial planner or other trusted advisors, providing they are impartial and concerned only with your best interests. Can I appoint more than one person?If you want more than one person involved in your financial decisions, you can name more than one person to be your attorney. You are not required to do so. If you do name two people to be your attorneys the law says they must make all your decisions together, unless you state that they may make decisions "jointly and severally" meaning "together and separately." If it is your choice that two attorneys always act together in all decisions, for a "double-check", it’s a good idea to specify how disagreements get resolved. On the other hand, you may decide to name only one attorney if you’re concerned about the possibility of disagreements or you believe it may be difficult for others to deal with more than one person concerning your finances. You could name one person as your attorney and another person as a substitute, or backup, who could step in if your first choice resigns, gets sick, or dies. What is the Attorney's responsibility?The attorney’s responsibility is to act in your best interests, and in accordance with the law, in managing your affairs while you are unable to act for yourself. Your attorney is accountable to you and should keep accurate and detailed records of transactions and decisions made on your behalf. I have a will, do I need a Power of Attorney?A Power of Attorney and a Will are two very different documents. The Power of Attorney is only effective while you are alive but unable to act for yourself. Your Will expresses what will happen to your property after you die. The Power of Attorney is revoked (cancelled) upon your death and the Will then comes into effect. Can I restrict my Attorney's power?Yes, a continuing power of attorney can be very specific. However, you don’t want to make the power too narrow because it may turn out that your attorney lacks the authority to do something that is necessary in order to carry out your wishes. On the other hand, if you make it too broad, the risk is that your attorney may not be totally trustworthy and may do something that you had not planned on. What about power over my health and welfare?You may be familiar with the idea of a "living will" in which a person may decline certain treatment, such as artificial life supports or other "heroic measures" in the event of a terminal illness. This is one type of instruction that you can make. You may want your attorney to keep you in your own home as long as possible, or you may want to ensure that your attorney observes your religious beliefs when making decisions. You can be very specific in your instructions or give your attorney general guidelines to follow. You are not required to give instructions if you don’t, your attorney must make decisions according to what he or she believes is in your best interest at the time. Remember, your attorney cannot be required to do something which is against the law. I'm Convinced! What next?Complete our Power of Attorney Questionnaire and send it to our office. We will prepare a draft document for your approval and once you are satisfied that it meets your requirements, we will prepare four copies and invite you to attend at our office to sign them and have them properly witnessed. How much does this cost?
This document is provided for information only and is not intended to be
construed as advice.
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