Trust should be top of mind when drafting powers of attorney.
Under Ontario’s Substitute Decisions Act, attorneys for property are granted authority over the grantor’s property, including their finances and bank accounts. Meanwhile, attorneys for personal care take responsibility for decisions about the person’s health care broadly, including nutrition, shelter, clothing, hygiene, and safety.
You don’t have to pick the same person to perform both roles, but each document carries extraordinary power, so whoever you do choose to appoint should be someone you have absolute faith in.
While it may be difficult to identify suitable attorneys, it’s definitely worth the hassle. When a person becomes incapacitated without a POA in place, the whole process can become quite expensive if the Office of the Public Guardian and Trustee has to become involved, and courts end up making the final decision.
POA for property
Unless you’re in the legal profession or you’ve been appointed under a POA for property, most people underestimate exactly what’s involved.
The term “property” extends well beyond a person’s home and its contents; your POA appointee will be handling all of your financial income and outgoings, with access to, and decision-making power over, bank accounts and investments.
In fact, under a general POA, attorneys can do pretty much as they please with the grantor’s property, except for making a will on their behalf.
Some people prefer to draft a limited POA that specifically which specific assets or classes of property the attorney has power over.
The grantor also gets to choose when their POA takes effect – whether that’s immediately, the point at which you lack mental or physical capacity, or upon a specific date or event under what’s known as a “springing” POA.
POA for personal care
Taking over responsibility for a person’s health care decisions is another huge job, so it’s usually best to consult with your preferred appointee to make sure they’re willing and able to perform the role.
Still, it’s not just medical appointments and critical care decision-making that POAs for personal care have to concern themselves with. More mundane issues arise for attorneys on a day-to-day basis.
And in my experience, decisions over those apparently minor issues – such as the frequency of haircuts or attendance at certain functions and events – are often just as important to the grantor and their family as those taken in the acute phases of illness.
Although attorneys are bound by their fiduciary duty to act in the grantor’s best interests, the whole process runs a lot smoother when a POA is drafted to include guidelines for appointees to follow in certain predictable circumstances. Many people have ideas about organ donation or resuscitation following medical events, so it’s helpful to spell those out in their POA documents.
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