Make Sure You Plan for Incapacity

Your estate planning shouldn’t end with an up-to-date will; it should also include powers of attorney (PoA) for both property and personal care.   A Power of Attorney is a legal document that gives someone else the right to act on your behalf if you become incapacitated and are unable to do so.

While most will and estate planners recommend you prepare these two documents at the time you create your will, they can be prepared at any time.

PoA for Personal Care

With a power of attorney for personal care, you can authorize someone to make medical and personal care decisions if you become incapable of making them yourself.

Under Ontario law, you can give power of attorney for personal care if you are at least 16 years of age, and have “the ability to understand whether the proposed attorney has a genuine concern” for your welfare, and can appreciate that the attorney may need to make decisions.

Personal care includes decisions concerning health care, nutrition, shelter, clothing, hygiene and safety.

PoA for Property

A continuing power of attorney for property authorizes someone to do anything regarding your property that you could do if capable, except make a will.

The law says you are capable of giving a PoA for property if you are at least 18 years old, know what kind of property you have, along with its estimated value, and are aware of any obligations owed to your dependants.

A continuing power of attorney for property is a powerful document.  Unless otherwise stated in the document, it is effective immediately; when signed, granting considerable power to your attorney.  Make sure your PoA includes the term ‘continuing’ and includes the document that only gives the PoA the right to exercise his power over your affairs if you have become incapacitated.

Not have a PoAs could be costly

If you don’t have a power of attorney in place, a loved one will have to make an application to the court before they can make decisions for you.  That can leave you and your family scrambling when you are in no condition to do so.  Having a will in place does not help because an executor is only able to act upon your death.

Furthermore, court processes can be both time-consuming and costly.  Depending on the circumstances, the Public Guardian and Trustee may have to get involved. Once this happens you may lose the opportunity to choose the people you want and/or you may not be able to set the parameters regarding the actions of your newly appointed decision makers.

Because of these serious issues; I would advise you to consult with your lawyer to ensure the documents are designed to work in your best interest.  If you have any questions or want more information, don’t hesitate to give me a call.

Happy first long weekend of the summer,

Tracey

 

Source:  original article by Elaine Blades posted on Advisor.ca 04-23-14