Estate planning is about taking care of yourself and the people around you. Your Will is the document you can use to instruct how to deal with your property after your death, whereas a power of attorney, or “POA”, deals with matters while you are living.
A POA allows you, the “grantor”, to share decision-making power over your financial and/or personal affairs with someone else, called your “attorney”. It is important to note that by doing so, you DO NOT lose your own ability to make those decisions. You are however giving your attorney significant legal powers, so your decision to grant a POA and your choice of attorney should be carefully considered.
Types of POAs in Ontario
Under judge-made common law, powers of attorney were limited to property matters, and they ceased to be effective if the grantor became mentally incapable of making such decisions him/herself. Provincial legislation now supersedes common law rules, with two types of POAs commonly used in Ontario today:
- Continuing power of attorney for property (or CPAP), which may ‘continue’ past the mental incapacity of the grantor if that is expressed in writing on the document, and
- Power of attorney for personal care (or PAPC).
Capacity to execute a power of attorney
For either type of POA to be effective, the grantor must have sufficient mental capacity to give it legal effect.
The legal age to grant a PAPC is 16. You need to understand the kind of decisions that this covers, which includes medical consent, health care, nutrition, shelter, clothing, hygiene and safety. Furthermore, you must be able to appreciate whether the named attorney has a genuine concern for your personal care.
It is possible to require that a CPAP only takes effect once the grantor is incapacitated, but that would require a mental assessment which could delay its use when time may be critical. Alternatively, a common practice is to have it effective on execution, with the stated intention on its face that it is expected to be used on a later incapacity. The document should remain in safekeeping, possibly remaining in the lawyer’s office, which provides a bit of a degree of protection against its premature use.
An attorney under a PAPC may only act if the grantor is incapable, or otherwise unable to respond.
Scope of authority
An attorney for property can do anything that the grantor can do, with the exception of making a Will or making/changing a beneficiary designation that has testamentary effect. For example, the attorney can’t change the beneficiary of an RRSP. A grantor may place further restrictions on an attorney’s powers if desired, but cannot remove this testamentary limitation.
As well, a grantor may give instructions to the property attorney, though this is most often in general terms. Absent that, an attorney’s first responsibility is to take care of the interests of the grantor, then any dependants, and possibly provide gifts, loans or donations if that reflects the grantor’s practices.
For a personal care attorney, sometimes there will be a ‘living will’ in existence, which is technically known as an advance care directive. The personal care attorney must consider any wishes the grantor may have expressed while capable, whether in the power of attorney, oral or in writing elsewhere.
Legal duties on incapacity
Acting as an attorney is a big responsibility, but it takes on a whole new light once a grantor becomes incapacitated. At all times, but especially at this point, an attorney must act diligently and in good faith. The attorney is required to explain decisions to the grantor, and to involve the grantor in making those decisions to the extent possible. As well, the attorney should consult with family, friends and caregivers as appropriate, and assist the grantor in maintaining contact with them.
For a personal care attorney, there is a particular requirement to help the grantor live as independently as the person may wish. And where treatment or intervention is called for, it should be the least restrictive course of action.
Who to name as attorney, and how
An attorney must be mentally capable, and 18 for property or 16 for personal care. Someone who is providing paid personal care services (for example a health care provider) cannot be a personal care attorney, unless he or she is a family member.
Commonly, spouses will name one another as attorney in both roles, though you are free to do otherwise. Beyond that, you may name one person to act for property and another for personal care. In fact, you can name more than one person in each respect, though it can get challenging the more who are involved. If you want multiple attorneys to be able to act independently of one another, then the POA document must state this as “joint-and-several”. Otherwise, every decision, instruction and permission, for example signing a cheque, must involve all attorneys “jointly”.
In terms of abilities and personalities, think whether they have the time and are physically near enough to do the job. Consider the length and depth of your relationship as well, as this person will be making important decisions as if in your shoes. Bear in mind that there are built-in financial implications, so knowledge and known capability in this arena are critical. And, don’t forget organization and communication skills, diplomacy, privacy and general trustworthiness – all of which might be called soft skills in other situations, but are at the core of what you will want and need when you are vulnerable.
Speak to your Meridian Wealth Advisor for perspective on these important issues.