Estate Planning

Power of Attorney and Living Wills

Power of Attorney for Property

A power of attorney for property is a document which permits you to appoint a trusted person to act in respect of your property, if for one reason or another you are unable to do so. For example, appointing a Power of Attorney is useful in the event that you become sick, mentally ill, incapacitated or out of the country. The attorney is usually an adult family member, a close friend, business associate or even your lawyer. You can also appoint joint Attorneys or have a secondary appointment in case the first person is unable or unwilling to act.

The scope of your Attorney’s duties will vary according to the terms of his or her appointment. It can be for a limited duration or be effective for an extended period (which can be revoked at any time). The Attorney can be provided with the power to make financial decisions, have access to bank accounts and investments, and even allow the person to make business decisions. It is important to carefully consider the scope of powers you want to give to your Attorney and to word the agreement carefully, with the help of a professional.

A Power of Attorney can be drafted so that it only become effective in the event of incapacity. This is known as an “enduring” power of attorney. In this situation the Power of Attorney document may be kept by another person, such as your lawyer or accountant. The person safekeeping the Power of Attorney must then be provided with evidence of your incapacity, such as a letter from your doctor, before the Power of Attorney is released.

If you do not appoint a Power of Attorney and you become incapable of making financial and other decisions, the Court may appoint a Public Trustee to handle your affairs. Close friends or family would then have to apply to the Court to appoint someone else to manage your affairs. This can be a costly and time-consuming process. It therefore makes good sense to establish a Power of Attorney in advance that becomes effective in the event that you come unable to make your own decisions.

Powers of Attorney for Personal Care

Most provinces have legislation the permit the appointment of a person to make decisions regarding your personal and heath care. In Ontario this is known as a Power of Attorney for Personal Care. Provincial legislation also specifies when the appointment becomes effective and what types of personal care decisions can be made by the Attorney. The same person (for example, your spouse) may will be appointed as Attorney under the Power of Attorney for Property and Personal Care. You may appoint joint Attorneys and it is also wise to also appoint an alternate Attorney in case your first choice is unable to act.

Again, if you haven’t appointed an Attorney to deal with your personal care, provincial legislation will often specify who can make health care decisions when you are unable to do so. If the situation involves emergency medical care, close family members are normally permitted to make these decisions. But if longer term heath care arrangements are required, a court appointed official (often called the Public Guardian) may step in until a family member or friend applies to Court to play this role.

Living Wills

A living Will may be used to provide specific direction to caregivers in terms of what treatments are (or are not) to be administered should that person not be capable of providing their own instructions. The legal status of a living varies from province to province. For example, it may be possible to specify health care wishes in a Power of Attorney for Health Care or a similar document. Even in provinces where a living will is not legally recognized, such a document can provide valuable direction to family members and medical practitioners concerning your wishes for medical care.

Decision making relating to the medical treatment for a seriously ill or incapacitated family member is very difficult and painful. Living wills help to ease this burden by taking some of these tough decisions off the shoulders of family members.