Life is unpredictable, and while it’s easy to assume that we will always be able to make our own decisions, there might come a time when we can’t. Whether due to an accident, illness, or aging, incapacity can happen to anyone regardless of age or financial situation. It is, therefore, essential to plan ahead. One of the most effective ways to prepare for situations of incapacity is by creating Powers of Attorney for Property and Personal Care, and a Living Will.
Understanding Power of Attorneys
There are two main types of Powers of Attorney (“POA”) that you can create to appoint someone who can make decisions on your behalf if you become unable to do so:
- Power of Attorney for Property: This allows the person you appoint (your attorney) to manage your financial affairs. Such tasks can include paying bills, collecting money owed to you, managing your investments, and handling other financial matters. Usually, Powers of Attorney for Property are made unconditional, meaning that Attorneys can act upon their powers using an original, signed Power of Attorney document immediately after the document is executed and before any incapacity issues arise. For this reason, it is recommended that you do not provide an original, signed Power of Attorney for Property to your Attorney, but rather inform them of where you are storing the document and how they can access it should the need arise. It may be that your capacity to manage your assets is uncertain or you may have capacity but be dealing with a serious illness which makes it more challenging to manage your financial affairs. Without the document being conditional on proving incapacity, there will be no delay in your attorney being able to make financial decisions on your behalf. Of course, you must choose someone that you trust to make decisions in your best interest.
- Power of Attorney for Personal Care: This allows the person you appoint to make decisions about your health care and personal care. Such decisions can include medical treatments, housing, meals, clothing, and other aspects of your personal life. Unlike an Attorney for Property, an Attorney for Personal Care can only start making decisions if you become incapable of making them yourself.
Understanding Living Wills
A Living Will is a document that outlines your wishes regarding medical treatment if you become incapacitated and there is no reasonable chance of your recovery. A Living Will provides direction to your Attorney for Personal Care regarding the continuation or use of life-saving measures.
Currently, decisions regarding Medical Assistance in Dying (“MAID”) cannot be outlined in a Living Will, nor can an Attorney for Personal Care request medical assistance in dying on behalf of another. You must have capacity to undergo MAID.
The Importance of Planning Ahead
Planning for incapacity through Powers of Attorney and Living Wills offers several significant benefits:
- Ensures Your Wishes Are Respected: By clearly outlining your preferences, you ensure that your healthcare choices align with your values and beliefs, even when you can’t communicate them.
- Relieves the Burden on Loved Ones and Attorneys for Personal Care: Family members are often left to make difficult decisions during emotionally charged times. Furthermore, having clear instructions such as a Living Will can alleviate the stress and guilt associated with making such choices for loved ones or Attorneys for Personal Care.
- Prevents Conflicts: Detailed directives can help prevent disputes among family members about the best course of action, providing clarity and guidance.
Conclusion
While contemplating the possibility of incapacity can be uncomfortable, preparing for it with Powers of Attorney and Living Wills is a crucial aspect of responsible planning. By taking these steps, you can ensure that your medical care aligns with your values and that your loved ones are guided during challenging times.
This blog post was written by Articling Student Colton Allen and Partner Kate Wright, a member of the Family Law, Wills and Estates and Estate Litigation teams. Kate can be reached at 613-369-0383 or at kate.wright@mannlawyers.com.
