A power of attorney may be the most valuable legal instrument you’ve never heard of, but a New Brunswick family doctor is hoping to change that.
Under provincial legislation, 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.
Generally, the biggest problem I find with POAs is that people don’t realize how much they need one until it’s too late. Since they are designed to kick in when a person becomes incapable of handling their own affairs, you must have one in place before disaster strikes. Once a person reaches the point of incapability, they can no longer sign a valid POA, which can leave family members in a very difficult position.
But as CBC News recently reported, attorneys don’t always know exactly what they are signing up for. The reality of the role came as a shock for Mary Jarratt, a New Brunswick family doctor who told the broadcaster she wanted to see more awareness of the topic and greater access to resources and assistance for Canadians executing POAs, as well as those preparing for their roles as substitute decisionmakers.
“Billy was the last person that you’d ever would have thought would become disabled,” Jarratt said of her physically active 58-year-old brother, who now relies on a wheelchair and can no longer speak after suffering a massive stroke in early 2023.
According to the CBC, Jarratt’s initial efforts to take over responsibility for her brother’s finances were held up by her inability to track down a copy of her brother’s will or the POA document itself. Later, privacy and fraud-prevention concerns over a series of lost account numbers of passcodes hampered communications with individual banks and utility providers.
Looking back, Jarratt said she could have benefited from a deeper discussion with her brother about his precise wishes if the POA ever had to be activated .
“If someone asks you to be POA, spend an hour sitting down with them just getting an idea of what their wishes would be and maybe some basics about their finances, about their house … and what they would want for their children,” she added.
I can only echo her sentiments. As much as we might wish for a crystal ball to reveal when a terrible event might or might not occur, none of us can predict the future. Acting under a POA is not an easy job, but for a loved one who is properly prepared for the role, it offers the smoothest possible way to take control of your affairs and get on with their own lives should the worst ever happen.
There are two kinds of powers of attorney under Ontario’s Substitute Decisions Act, which separates the functions between attorneys for property – who take responsibility for the grantor’s finances, bank accounts and other personal property – and attorneys for personal care, who handle decisions about health care, including nutrition, shelter, clothing, hygiene, and safety.
The same person doesn’t have to perform both roles, but each document carries extraordinary power, so make sure you choose people you have absolute faith in.
An experienced lawyer can help grantors set the specific terms that work best for them, including exactly when the POA takes effect and even guidelines for appointees to follow in certain predictable circumstances.
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