Giovanniello Bellefeuille

Despite the importance of having powers of attorney, the vast majority of Canadian adults still do not have either a power of attorney for property or a power of attorney for personal care. Based on a survey conducted by LawPro in the spring of 2012, 71% of Canadians had neither.

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As long as this statistic remains alarmingly high, we will continue to write about this very important topic.

 

What is a power of attorney?
A power of attorney is a document that appoints a person of your choosing to act and make decisions on your behalf if you are unable to. The person you appoint is called an attorney (sometimes referred to as the substitute decision maker).

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What type of decisions can an attorney make?
The type of power of attorney will dictate the decisions the attorney can make.

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Power of attorney for property
A power of attorney for property allows you to name someone to deal with your property and finances.  For instance, you can give someone temporary authorization as a matter of convenience. If you winter down south, your attorney can pay your bills while you are away. If your power of attorney for property is a continuing power of attorney for property (they generally are), then your attorney can also act on your behalf in the case of your mental incapacity. 

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Power of attorney for personal care
A power of attorney for personal care permits you to name someone to make decisions about your personal and health care in the event that you are not able to. The decisions to be made may range from what you should eat, to where you should live, to whether you should see a doctor.

Can my spouse or one of my adult children not simply make decisions on my behalf?

Even though your family members may be able to make some financial or health care decisions, there are too many instances where they will not be allowed to act without having a power of attorney. For instance, a government agency such as Canada Revenue Services will not speak to you about someone else’s income tax, including your spouse’s, without a written directive. Before you have major surgery, the hospital will probably want to know who has the legal written authority to make decisions on your behalf. 

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If the need arises and there is no power of attorney in place, your family may be forced to go to court to have someone appointed. This will lead to delays, financial expense and possibly conflict within your family.

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What is a treatment directive?
In your power of attorney for personal care, you can include various instructions for your attorney, including the type of medical treatment you do and do not want, particularly at the end of your life. This is called a treatment directive (formerly referred to as a living will.)

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If you do have strong feelings about your medical treatment in the event that you are unable to speak, you should prepare a power of attorney for personal care that includes a treatment directive. Remember that your instructions must be clear. For instance, saying that you “do not want to be kept alive on life support” is too vague since this statement does not differentiate between life support and the prolongation of dying. With the advances in medicine and technology, it is important that you talk to your doctor so that he or she can explain various medical scenarios and treatments. Finally, your attorney should not be left in doubt as to your wishes, since it is your wishes, not those of your attorney, that should be carried out.

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Despite the potential consequences, people continue to neglect this important aspect of planning their finances and health care. Please make time during this new year to prepare powers of attorney as well as a will. If you already have these documents, be sure to review them to ensure that they still reflect your particular circumstances.

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Our firm works in the area of estate planning and would be pleased to assist you.