Power of Attorney: What is it and Why should you have one?

What is a Power of Attorney and Why should you have one? 

Don’t wait until an emergency has happened to find out why a Power of Attorney is so important. At times, we have all been guilty of thinking “that would never happen to me”.  However, when accidents or illness occur, and even if you are only temporarily unable to act for yourself, a Power of Attorney will be an important means of helping to protect your interests and assets. Learn more about what a Power of Attorney is, and how it can be applied toward personal care and/or property in this blog.

What is a Power of Attorney?

• The role of a Power of Attorney is to act as your Substitute Decision Maker if you are unable to make decisions on your own, whether financial or medical. You will hear the term “SDM” as the acronym for a substitute decision-maker but we prefer to always use the full and proper name because it is a powerful role and one that you should carefully consider who is best suited for it.
• Importantly, your Power of Attorney does not actually have to be an attorney.
• A Power of Attorney is a written document, signed together with your lawyer, that gives another person the power to make decisions for you, regarding certain matters, on your behalf, if you are unable to do so. It takes effect if you are mentally incapable of making decisions regarding your personal care, or your property.

Power of Attorney (a POA) for Personal Care

• Designating someone as your substitute decision-maker by way of a Power of Attorney for personal care means that you are entrusting the substitute decision maker to make decisions regarding your health and personal care, if have been determined mentally incapacitated. Such a determination would mean that you are unable to make decisions about your personal care and/or that you are unable to care for yourself.
• Depending on where you live in Canada, such a determination would only be made after a capacity assessment is completed by a medical professional. A Power of Attorney for personal care is generally in place until such time as your passing although, in some circumstances, it can be revoked.

What Does Personal Care Refer To?

• Designating someone as responsible to make decisions about your personal care means they will be able to determine who provides and how you receive care. This could mean decisions about your diet, housing, clothing, and hygiene; as well as determinations about your health care, safety, and medical treatment options would also be in their control.
• You may even entrust this individual to make decisions about the level of end-of-life care you would like (or not like) to receive. It is a big decision and one that you should not take lightly. For many married partners, it is the spouse who takes on this role. However, you are free to designate anyone whom you feel is best suited, or most likely to align with your personal beliefs and who will follow your stated intentions.
• Finally, it is important to note that if you do not have a POA, and you are deemed mentally incapacitated, a legal guardian may be appointed on your behalf and over which you would have no determination. Therefore, obtaining a Power of Attorney is an important means of protecting your future self and ensuring you would receive the type of care you prefer.

Power of Attorney for Property

• The other type of power attorney that exists is a POA for property. In this role, the person you designate would have as much, or as little, authority over your personal property, as you determine appropriate. Most often, a POA for property encompasses managing your banking such as paying bills, making day-to-day investment decisions, managing the mortgage payments if there is one, and perhaps even running your business or the sale and distribution of real estate assets.
• Like a POA for personal care, you will want to carefully consider whom you entrust to make such decisions on your behalf. A Power of Attorney for property will generally remain in place until your passing, at which time, the provisions of your Will take over. You may also appoint a temporary Power of Attorney. For example, you may be traveling out of country, and temporarily designate someone to act on your behalf only while you are gone.

The role of a Power of Attorney is a powerful one and it should not be undertaken lightly by either party. At Foote Law, we work together with you to ensure you are fully aware of your rights. We will explain fully to you, what the role of a Power of Attorney and substitute decision-maker means to you and to your future self; and we will support your fully informed decision maker, about who takes on that responsibility by providing the appropriate documentation. In both scenarios, your Power of Attorney must be a minimum of 18 years of age and of sound mental capacity. In the event of a life-altering event such as divorce, and if a spouse is your Power of Attorney, you might wish to change your designated attorney to ensure all parties are aware of those changes.

We should also note that some people have important beliefs governing their decision-making and situations such as end-of-life care or life-support. These can be difficult for those left responsible for your care. Having a Power of Attorney in place that clearly defines your wishes and entrusts that role to someone you know. This will ensure that your attorney will have the care and capacity to honour those wishes. This is not only the legally responsible thing to do but also, a gesture of kindness to those struggling with your challenging decisions at a difficult time. Speak to a member of the Foote Law team about how we can support you with documents for personal care and/or your property. We are family law specialists, here to help.