Know the difference between powers of attorney for property and powers of attorney for personal care.
Powers of Attorney Overview
An overwhelming majority of Ontario adults currently go about their daily lives without the security of having a properly drafted will and a power of attorney in place. It is important to address these matters regardless of one’s age in order to avoid the pitfalls of probate, and to provide yourself and your loved ones with peace of mind through proper estate planning.
Power of Attorney General Overview - Continued
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
Power of Attorney for Property
This specific type of Power of Attorney works to provide your appointed attorney with the power to conduct your financial affairs. This includes your interests in both real and personal property in the event that you become mentally incapable, and unable to conduct these affairs yourself.
The reach of this document can be as expansive as you wish, but typically they are constructed to provide your designated attorneys with the necessary authority to manage your financial affairs. Such as, paying bills, managing your investment portfolio, or the buying and selling of property.
A particular level of mental capacity is required in order to create a legally enforceable Power of Attorney for Property.
First, you are required to know what property you currently hold, as well as its estimated value.
Second, you must understand your responsibilities to your financial dependents.
Third, you must be aware of what specific authority you are delegating to your appointed individuals.
Fourth, you must understand that your attorney is obligated to account for all decisions made in regards to your property.
Fifth, you must understand that you have the right to revoke your power of attorney at any time, so long as you are mentally capable.
Sixth, you must understand the potential consequences that could result due to mismanagement of your property at the hands of your attorney.
Last, you must understand the unfortunate possibility that your attorney may abuse their authority.
Power of Attorney for Personal Care
Conversely, A Power of Attorney for Personal Care involves the designation of authority to make decisions surrounding medical treatment, health care, safety, food, and other matters of a similarly intimate nature. This document allows you to outline in advance what your future care will look like by placing the power to make these important decisions in the hands of someone you trust to carry out matters in your best interest. This document provides you and your loved ones with the peace of mind that your personal interests will be looked after should you no longer be able to adhere to them yourself.
A particular level of mental capacity is required in order to create a legally enforceable Power of Attorney for Personal Care.
First, you must be able understand whether or not the individual you have appointed to be your attorney truly has your best interest at heart.
Second, you must understand that your appointed attorney may very well be required to make important decisions of your behalf.
A Power of Attorney for Personal Care can only be acted upon in the event that you become mentally incapable of making decisions on your own. Typically, it is left up to the judgement of your appointed attorney to determine whether or not you are mentally capable. However, if an impending decision is one involving medical or long-term care, it is up to a medical professional to determine whether or not you are mentally capable of making such a decision before your attorney will be legally permitted to act.
At Carson Law we are dedicated to helping our clients put together the appropriate set of Power of Attorney documents tailored to fit your unique set of needs.
To read Warren’s corresponding article on Power of Attorney General Overview, click here.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Powers of Attorney and Substitute Decision Making during COVID-19
With all that surrounds COVID-19, we may have started to consider what is important to us and what would happen if we were to suddenly become seriously ill.
With the current restrictions on travel and social gatherings, you may need to re-evaluate if your chosen attorney is best suited for the job. This person should be capable of quickly communicating, getting informed, asking questions and providing consent where necessary as well as know ahead of time what choices you would like to make.
Perhaps ask yourself the following1:
• Is that person immune-compromised?
• Is that person in quarantine or otherwise vulnerable?
• Will this person be able to safely and effectively perform the necessary functions?
• If you have more than one attorney for unanimous decision-making, is this still achievable?
• If your attorney is a front-line worker, can they still be available when the time comes?
If all else, you should appoint an alternate-decision maker in the event that your attorney becomes incapable or unwilling to act. If neither of these are appointed, to have your money, property and personal care looked after, a next of kin will need to bring a guardianship application before the Court.1In a normal world, this process is timely and costly. In the world we are currently living in, this could be difficult to execute with all Courts closed and only accepting urgent matters and select applications.
Reminder: For the duration of COVID-19, powers of attorney must be witnessed by two witnesses, but the signing can be done by way of audio-visual communication, with the donor signing remotely and the two witnesses watching and signing by video call. For the remote signing, one of the witnesses must be a lawyer or licensed paralegal.
With the current restrictions on travel and social gatherings, you may need to re-evaluate if your chosen attorney is best suited for the job. This person should be capable of quickly communicating, getting informed, asking questions and providing consent where necessary as well as know ahead of time what choices you would like to make.
Perhaps ask yourself the following1:
• Is that person immune-compromised?
• Is that person in quarantine or otherwise vulnerable?
• Will this person be able to safely and effectively perform the necessary functions?
• If you have more than one attorney for unanimous decision-making, is this still achievable?
• If your attorney is a front-line worker, can they still be available when the time comes?
If all else, you should appoint an alternate-decision maker in the event that your attorney becomes incapable or unwilling to act. If neither of these are appointed, to have your money, property and personal care looked after, a next of kin will need to bring a guardianship application before the Court.1In a normal world, this process is timely and costly. In the world we are currently living in, this could be difficult to execute with all Courts closed and only accepting urgent matters and select applications.
Reminder: For the duration of COVID-19, powers of attorney must be witnessed by two witnesses, but the signing can be done by way of audio-visual communication, with the donor signing remotely and the two witnesses watching and signing by video call. For the remote signing, one of the witnesses must be a lawyer or licensed paralegal.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1Morris, S. (2020, April 21). COVID-19 Updates for your Business. Retrieved May 1, 2020, from https://www.mindengross.com/resources/news-events/2020/04/21/substitute-decision-making-during-covid-19-why-you-need-(or-may-need-to-update)-your-power-of-attorney
How can wills and powers of attorney change over time?
Wills and powers of attorney (POAs) are extremely useful pre-planning documents, because they can provide security and peace of mind in times of ill health, and at the end of a person’s life. But these documents are necessarily written well before we anticipate that we will need to use them. This means that our wills and POAs can become outdated.
In this short article, we’ve flagged a few circumstances where you should consider updating your will and POAs, and we’ve described a few ways that each type of document can be changed.
As always, when you are working with wills and POAs, it is best to retain a lawyer.
You should consider updating your wills and POAs if:
You get married or divorced
Your spouse passes
You show or your spouse shows early signs of losing capacity
You have your first child
All of your children reach the age of majority
You become estranged from a person named in your will
You are a business owner and you are selling the business
You are moving to different province or country
Your financial situation changes drastically, or your financial wishes change drastically
You experience other drastic changes in your life
How can you update your will?
You can update your will in two main ways:
writing a new will, or adding a codicil to your existing will.
A codicil is a document that is read together with the original will. This means that all of your original intentions will still be read when you pass. By contrast, writing an entirely new will means that the original will can be entirely destroyed, without anyone reading it after you pass.
Anyone considering using a codicil should think about whether the contents of the codicil would contradict the contents of the original will, because this kind of inconsistency can lead to people challenging your will after you pass. So, if you are planning on making a relatively small change to your will, like changing your executor or adding a particular gift, a codicil may be the best option for you. On the other hand, if you are planning on making significant changes to your will — such as changing your beneficiaries or what they receive, or changing multiple sections of your will — an entirely new will may be the best option for you.
How can you update your POAs?
There is no real process to “tweak” a POA. POAs for property and for personal care are quite short and specific documents. Therefore, if you need to make changes to your POA(s), you will almost certainly need to write entirely new POAs.
Executor and Estate Planning Seminar
Ryan Carson is honored to be asked to provide his legal expertise at the Estate and Executor seminar being provided by Jennifer Aubertin and RBC Dominion Securities in Burlington, ON. Attendance is open to the public and complimentary, but seating is limited so anyone interested should RSVP sooner than later.
Thursday, October 5, 2017
6:00 p.m. – 6:30 p.m.
Reception and light dinner
6:30 p.m. – 8:00 p.m.
Panel discussion and Q&A
RBC Dominion Securities
4475 North Service Rd., 4th Floor
Burlington, ON (Appleby exit)
Please contact Tammy Lawson at 905-332-2583 or tammy.lawson@rbc.com to reserve your seats.
