Power of Attorney for Property

Your Power of Attorney for Property can appoint one person to act or it can appoint more than one person. If you only appoint one person, it is always a good idea to appoint a replacement in case something happens to the first person. If you appoint more than one person, you can specify that all those appointed must agree and act together (usually the word “jointly” is used to describe this). Sometimes this is impractical and you think it best that any of the appointed persons could act alone (usually the word “severally” is used to describe this). Often the appointment gives the flexibility to have all or any of the attorneys to act – in which case the words “jointly and severally” would be used.

The Power of Attorney for Property can be general (i.e. it applies to everything you own and lasts for an indefinite period) or it can be specific, limited to the performance of a certain task or lasting for a given period of time.

You can make the Power of Attorney for Property conditional upon the happening of an event (typically becoming incapacitated) or you can specify that it is unconditional. There are pros and cons to both.

Making it conditional upon incapacity necessitates a physician’s certificate be presented each time the Power of Attorney is used. This might pose some logistical problems, particularly where the condition causing incapacity may be intermittent. Some dementia, particularly in early stages, comes and goes. The person being asked to take directions from the Substitute Decision Maker might well ask “Is the Donor still incapacitated?" Continually updating the physician’s certificate might be troublesome.

On the other hand, making an appointment unconditional entails certain risks. With an original Power of Attorney for Property in hand your Substitute Decision Maker could do something that you had no intention of doing (you may have heard some family law horror stories of vindictive spouses cleaning out the other’s bank account or investment portfolio just prior to seeking a divorce). So how you tailor your Power of Attorney for Property is very important.