Powers of Attorney and Living Wills

Usually we think of a Will as the key document to manage our estate after we die.

 

Wills have no power while you are still alive. But what happens if you go through a period of your life when you aren’t able to manage your own affairs?

 

You may be physically living and breathing, but your mental capabilities could be weakened so that you can‘t make decisions for yourself. This could be the result of dementia, Alzheimer’s disease, medication, medical treatment or injury.

 

There are ways to plan for this unfortunate possibility. Powers of Attorney and Living Wills enable another person to make decisions for you if you cannot do so yourself.

 

A Power of Attorney is a powerful document. Do not sign one unless you understand its full ramifications. You should always consult with a lawyer before beginning the process.

 

The Legal Dimension

The laws governing Powers of Attorney and Living Wills vary from province to province. Generally speaking, they enable another person who is referred to as your “attorney” to make decisions for you.

 

The “attorney”:

 

-       Does not have to be a lawyer (but should be someone you trust)

-       Acts as a “fiduciary” and must take account of all of your property dealings

-       Is entitled to be paid for his or her work (like an executor)

 

 

Powers of Attorney: Property or Personal Care

Generally, there are two types of Power of Attorney related to mental incapacity.

 

Power of Attorney for Property

This document gives authority to another person to make decisions about your property when you are unable to do so—i.e. when you aren’t mentally capable. This includes decisions about the money in your bank account, your personal residence and your investments.

 

In many provinces, it’s called an Enduring Power of Attorney. In others, such as Ontario, it is called a Continuing Power of Attorney for Property. Whatever the name, it’s very important that you grant it to a person you really trust.
 
Your attorney is required to act in your best interest at all times. That means that if it is in your best interest, the attorney will be able to make withdrawals from your bank account and sell your house.

 

Remember: Unless you limit the Power of Attorney for Property, your attorney may make any decision regarding your property that you can make yourself (except prepare a Will).
 
Power of Attorney for Personal Care

Many people confuse this with a Living Will. It, too, has different names, depending on which province you’re in. Simply put, it’s a document that allows another person to make medical or health care decisions for you.

 

A lot of people think they don’t need a Will because they don’t have children or a large estate. But almost everybody will need to have a Power of Attorney for Personal Care.

 

Why?

 

Because if you need medical attention, even a simple injection, the people who give it to you need your consent, barring an emergency where you are unconscious. A Power of Attorney for Personal Care gives another person the authority to make medical decisions for you if you can’t consent because of mental incapacity. If several family members give different instructions to medical staff, the Attorney for Personal Care will be the one they listen to.

 

However, your Attorney for Personal Care, while authorized to make decisions, must be guided by instructions you leave. This includes memoranda you’ve written and consultations with family members.

 

Living Wills
A Living Will is a document that describes what you want to happen if you become ill and can’t communicate your treatment or personal care wishes. It differs from Power of Attorney for Personal Care in that it doesn’t name anyone. In some provinces, the Attorney for Personal Care must make decisions in accordance with these sorts of documents.
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