Powers of Attorney
A Power of Attorney is a written document appointing someone else to make decisions or take actions on your behalf during your lifetime. The Power of Attorney in Ottawa and in Ontario must now be witnessed in front of two independent witnesses. A Power of Attorney stops the moment you die. Because of the word “attorney”, some mistakenly believe that you must appoint a lawyer to take these decisions for you. This is not the case. Think of this document as appointing someone else, your substitute decision maker, to make those decisions in the case where you are unable to make those decisions yourself. Typically you would give this mandate to a spouse or a close family member to act on your behalf, not your lawyer.
Types of Powers of Attorney
In Ontario there are now two distinct types of Powers of Attorney. A Power of Attorney for things that you own (your bank account, investments, real estate, etc.) called a Power of Attorney for Property, and a Power of Attorney for your personal welfare and health called a Power of Attorney for Personal Care. If you signed a Power of Attorney prior to 1992, it covers your property only, it does not cover personal care – you would have to make a new Power of Attorney for personal care. Even though your old Power of Attorney was only signed by one witness, it remains valid as all older Powers of Attorney, if properly prepared at the time, are “grandfathered”.
Give us a call if you would like to set up a consultation to discuss the preparation of a Power of Attorney document.
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. Sometimes this is impractical and you think it is best that any of the appointed persons could act alone. Often the appointment gives the flexibility to have all or any of the attorneys to act. The Power of Attorney for Property can be general, applying 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. How you tailor your Power of Attorney is very important, and there are pros and cons to both, but there are some things to be aware of:
Making it conditional upon incapacity necessitates a physician’s certificate to 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. Continually updating the physician’s certificate might also be troublesome.
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.
A Living Will or Do Not Resuscitate directive is now usually contained within the Power of Attorney for Personal Care, as your substitute decision maker is the person who carries out your end of life decisions. These directives often specify that no heroic measures are to be taken and that if your physician has determined that such treatment will only prolong the dying process, you simply will be given medication or treatment to keep you in comfort. This is a very, very difficult decision to be taken and you may wish not to leave it up to your loved ones. In this case, make sure a Living Will is included in your Power of Attorney for Personal Care. For more specific information on Living Wills, you may wish to visit the websites of groups focusing on this area, such as Dying with Dignity.
The Government of Ontario has a very informative website on Powers of Attorney for Property and Personal Care, including downloadable forms.
How Much Does a Will and/or Power of Attorney Cost?
We would be happy to discuss your Powers of Attorney with you. Usually this is done at the same time we meet to discuss your Will and your estate planning. Our standard fees are as follows (fees may be higher for complex Wills involving trusts or more esoteric tax planning techniques, or for complex Powers of Attorney, such as those that include more complicated end of life instructions):
For a Single Person
Will and both Powers of Attorney for Property and Personal Care $450.00
For a Couple
Wills and both Powers of Attorney for Property and Personal Care $700.00
Power of Attorney for Property or Personal Care $150.00 each
Discounts apply when multiple documents are prepared at the same time.