It’s likely that at some point you will need someone to act on your behalf. Whether it’s buying a house, running a business or managing your long-term care, a power of attorney may be required.
To better familiarize yourself with this legal term, here are the answers to some common questions:
What is a power of attorney?
A power of attorney is a legal document granting another person or people the authority to act on your behalf. Typically, a power of attorney appoints someone to manage your finances or health and long-term care decisions.
The person granting the power is usually called the donor or grantor, while the appointed person is the attorney.
A power of attorney can only be granted by a mentally-competent donor. If you’re seeking control over the affairs of a loved one who is mentally incapacitated, you need to seek a guardianship.
Each province has its own laws governing powers of attorney, so make sure you learn the specifics in your jurisdiction before entering into an agreement.
When should I get one?
While POAs are often created to protect yourself in case of future illness or incapacity, a power of attorney can also be useful if you’re out of the country for an extended period or simply too busy and wish to appoint others to help handle your affairs.
Who should I appoint?
Your “attorney” doesn’t have to be an actual lawyer, just a person you trust to handle whatever responsibilities you are delegating. You can also nominate multiple attorneys to carry out different tasks.
What are the types of power of attorney?
A power of attorney can be finite or indefinite and can grant broad powers or very specific ones.
A general power of attorney grants the attorney power to do anything the donor could do themselves, but have chosen to delegate.
A specific power of attorney is granted when the donor wants the attorney to handle a certain task, like selling a house.
When does it start?
A power of attorney takes effect once it’s officially signed and completed, unless otherwise stated in the document. A donor can also specify a certain date, or sometimes an event, like a diagnosis of mental incapacity, as the effective start time.
How long does it last?
Aside from the type of powers — general or specific — a power of attorney can also dictate their effective length.
An “ordinary” power of attorney lasts as long as the donor remains capable of acting for themself. It becomes invalid if the donor becomes mentally incompetent or dies.
An “enduring” or “continuing” power of attorney remains valid if the donor becomes mentally incompetent, but also expires when the donor dies.
The document can also specify an end date for the attorney’s powers.
Can I revoke my attorney’s powers?
You can revoke power of attorney as long as you are still mentally capable.
To do so, give written notice to your current attorney that you are revoking their authority, and notify anyone else who may have a copy of that agreement.
If you are creating a new power of attorney, be sure the document mentions that any previous versions are no longer valid.
What does it mean to be “mentally capable”?
Under the law, a person is considered mentally incompetent or incapacitated if they can’t understand the information required to make a decision or understand the consequences of a decision.
Is a power of attorney the same as a “living will”?
No. A living will spells out your wishes for future medical treatment if you become unable to communicate them. A power of attorney appoints someone to make those decisions on your behalf.
Do I have to pay my attorney?
In some provinces, your attorney may be entitled to compensation unless otherwise stated in your document. Talk it over with your prospective attorney before signing.
Can I sue my attorney for mishandling my affairs?
Attorneys can be held liable for breach of duty if they don’t follow the donor’s instructions or make decisions they aren’t authorized for. They may be required to compensate the donor for any loss stemming from their actions.
Government of Canada, Working for Seniors: http://www.seniors.gc.ca/eng/working/fptf/attorney.shtml