Did you just recently buy a house? Have you just recently had or adopted any children? Better yet, are you alive and over the age of 18? If you answered yes to any of these questions, it’s a really good idea to prepare Powers of Attorney.
What are Powers of Attorney?
There are two main types of Powers of Attorney – a Power of Attorney for Property and a Power of Attorney for Personal Care. In both cases, the grantor (the person making the power of attorney) appoints an attorney (a person that is most often a spouse, family member or close friend) to make decisions on behalf of the grantor. There are many varieties of each type of Power of Attorney that differ in terms of the decisions an attorney is authorized to make and when the attorney is indeed authorized to make decisions on behalf of the grantor.
When a person creates a Power of Attorney for Property, he or she (the grantor) is conferring authority on the attorney named in the document to do anything with respect to the grantor’s property that the grantor can do, save and except make a will. This does not remove the grantor’s ability to manage his or her own property but instead gives authority to the Attorney to share in that right. A Power of Attorney for Property can be unconditional, meaning that the document can be used by the attorney as soon as it is signed, or it can be conditional upon incapacity, meaning the attorney is only able to act once the grantor loses his or her capacity.
Conversely, where a person creates a Power of Attorney for Personal Care he or she is giving the attorney authority to make decisions regarding the grantor’s personal care, which unless there are restrictions, includes decisions regarding health care, nutrition, shelter, clothing hygiene and safety. Unlike the Power of Attorney for Property, a Power of Attorney for Personal Care can only be used when the grantor is incapable of making decisions. As well, whereas a grantor for a Power of Attorney for Property must be 18 years old, a person can execute a Power of Attorney for Personal Care as soon as he or she turns 16.
But Mark, I really don’t have much in the way of assets and I am young and healthy. Do I really need Powers of Attorney?
A fair question and one that has been asked by friends and clients alike. The issue is if you do not have Powers of Attorney in place and something happens to you (for instance an accident or sudden illness) and you lose your capacity to manage your own affairs, Powers of Attorney are no longer an option as they can only be created while you have the mental capacity to create them. Instead, a person close to you will have to obtain a guardianship order from a judge to be able to begin making decisions on your behalf. This involves a lengthy application process that requires extensive legal work and is significantly more expensive than preparing Powers of Attorney. Not to mention, you no longer have the final say for who becomes responsible for managing your property and your personal care.
Conclusion: Get Powers of Attorney!
I recognize that many people may not have “Get Powers of Attorney” on their current to-do list. Frankly, it wasn’t on my radar until I began my legal training. The good news is that you can check it off just as quickly as you can add it to the list. Preparing Powers of Attorney is almost always a very simple process. The provincial government has published informational documents online, and when prepared by a lawyer, the process is efficient and inexpensive.
This blog post was written by Mark Fortier-Brynaert, a member of the Business Law and Wills and Estates teams. Mark can be reached at 613-566-0380 or at mark.fortier-brynaert@mannlawyers.com.
