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NOTE: This article uses the term “attorney” in reference to an attorney under a Power of Attorney or substitute decision-making document, and should not be confused as referring to a lawyer.
A Power of Attorney is a legal document that lets you (the ‘grantor’) appoint someone (the ‘attorney’) to make personal care or property/financial decisions on your behalf. There are two kinds of Powers of Attorney, each kind dictating what kind of decisions an appointed individual can make for the grantor: Power of Attorney for Property & Power of Attorney for Personal Care.
Powers of Attorney are a vital component of estate planning. Having Powers of Attorney set in place can ensure your continuity of care and financial management right in the case you are incapacitated. Your designated attorneys can step in immediately and handle matters without excess delay.
If you do not have powers of attorney set in place upon incapacity, your loved ones may need to bring a guardianship application to Court, which can be very expensive and time-consuming. Ultimately, the Court will choose who will make decisions for you, and it may not be according to your preference! By creating Powers of Attorney, you can choose who you trust to make important decisions for you and who understands your wishes.
You must be of a certain age and have the capacity to create a Power of Attorney upon signing the legal instrument. If you lack the legal capacity or have been unduly influenced to create this legal document, you cannot create a valid and enforceable Power of Attorney.
POWER OF ATTORNEY FOR PROPERTY
An attorney under a Power of Attorney for Property cannot make a Will on behalf of the grantor or do anything considered similar to making a Will such as naming a beneficiary to receive a death benefit on an asset.
A Power of Attorney for Property covers decisions related to property, finances, mortgages, and assets (such as paying bills and taxes, selling property, etc.). Passing control of the management and decision-making authority to an attorney does not mean transferring ownership of assets or liabilities: the ownership will legally remain in the name of the grantor.
POWER OF ATTORNEY FOR PERSONAL CARE
A Power of Attorney for Personal Care covers decisions related to personal care, such as healthcare, nutrition, clothing, housing, hygiene and safety, and consent to medical treatment. This type of Power of Attorney comes into effect when the grantor becomes incapable of making these decisions for themselves.
THE POA REGISTRY
Powers of Attorney fraud is a growing concern. This kind of fraud occurs when a power of attorney and/or substitute decision-making document is improperly obtained and used to withdraw funds, authorize mortgages, sell property, and more.
Safeguarding your Power of Attorney documents can help mitigate the risk of fraud by submitting them to the POA Registry upon signing. This innovative registry secures your substitute decision-making documents along with providing a range of services including:
- verifying substitute decision-maker identity;
- generating user-friendly validation reports to evaluate compliance and deficiencies of any substitute decision-making document in Canada;
- providing easy-to-understand instructions and reports to substitute decision-makers regarding the scope of decision-making authority, capacity evaluations, and activation of substitute decision-making documents; and
- enabling safeguards to track when substitute decision-making is being used along with tracking for last-in-time status.
Learn more about the POA registry here.
The lawyers at Sweatman Law have extensive experience in activating and authenticating powers of attorney documents. Contact us here to receive specialized advice on the best course of action tailored to your unique case.
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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All legal situations are unique and should be reviewed by legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.
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