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A Review of Power of Attorney Documents

A Review of Power of Attorney Documents

By:

Posted November 7, 2023

What is a Power of Attorney document?

A Power of Attorney is a legal document that authorizes someone else, known as your “attorney” to act on your behalf. There are two distinct Power of Attorney documents:  the Power of Attorney for Property and  the Power of Attorney for Personal Care.

Power of Attorney for Property

This document gives your attorney the power to make financial and property-related decisions on your behalf. For example, your attorney could handle your financial matters like banking, cheque signing, real property transactions, and purchasing or selling personal affects. Unless you limit your attorney’s authority to act, they can perform nearly all financial or property related actions on your behalf, except making or amending your Will or appointing a new attorney on your behalf. There is a General Power of Attorney for Property or a Continuing Power of Attorney for Property:

General Power of Attorney for Property

A General (or Limited) Power of Attorney for Property is a legal document that allows your attorney to manage your finances and property to act while you are mentally capable and is often used for business or short-term purposes. If you do become mentally incapable of managing your property, the General Power of Attorney for Property typically ends, and your attorney could no longer act for you. Typically, a Continuing Power of Attorney for Property is preferred for most individuals.

Continuing Power of Attorney for Property

A Continuing Power of Attorney for Property enables your attorney to continue to act for you if you are deemed to be mentally incapable, or you are unavailable to make financial and property-related decisions on your own behalf. Your attorney will be authorized to act on your behalf immediately upon the document being signed by you unless you specify a condition or restriction on their appointment. Your attorney will typically have broad and sweeping powers to deal with or otherwise dispose of your property. For example, your attorney could spend your money without advance notice to you or approval by you, assuming there is no limitation on the powers that you grant to your attorney. More information on the Power of Attorney for Property can be found here.

Power of Attorney for Personal Care

This document gives your attorney the power to make decisions about your personal care, including your health care. If you become mentally incapable, your attorney for personal care, also known as your “substitute decision maker,” could make choices related to your shelter, clothing, hygiene, and safety on your behalf. Thus, a Power of Attorney for Personal Care is typically conditional on your incapacity. You could also embed your Living Will into this document or have it as a schedule to this document depending on your preference. More information on the Power of Attorney for Personal Care can be found here.

What Happens if I do not have any Power of Attorney Documents?

Without a Continuing Power of Attorney for Property, if you are mentally incapable of managing your property, a Guardian could be appointed by the Court, or the Office of the Public Guardian and Trustee (the “PGT”) could be appointed to handle your affairs. Similarly, if you have not made a Power of Attorney for Personal Care, and you are mentally incapable, a court-appointed Guardian or the PGT will be requested to make personal care and health care decisions for you.

When should I discuss a Power of Attorney document with a lawyer?

You should discuss your Power of Attorney documents with a lawyer when you are uncertain about how each document could apply to your circumstances. A lawyer can help you consider factors like your choice of attorney and how each document affects your quality of life.

This blog post was written by Brandon Doughty, a member of the Real Estate and Wills and Estates teams.  He can be reached at 613-369-0364 or at brandon.doughty@mannlawyers.com.

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Brandon Doughty

Brandon Doughty

I practice in real estate law and in estate planning matters and enjoy working with clients at different stages of their lives. I am happy to assist first-time home buyers, persons who are refinancing for new opportunities and those seeking advice in their will or power of attorney documents as a few examples. Before joining Mann Lawyers, I articled and briefly practiced at a firm in the Ottawa Valley with offices in Deep River and Pembroke. I assisted clients in the County of Renfrew in real estate law, wills and estates and corporate law. I graduated from the University of Windsor, Faculty of Law. While at Windsor, I had the opportunity to complete an externship with the Advocacy Centre for the Elderly in Toronto to assist vulnerable older adults across Ontario. I also competed in the Canadian National Negotiation Competition. Prior to law school, I graduated from Ontario Tech University... Read More

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