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Powers of Attorney
WHO DECIDES WHEN YOU CAN'T?
A will needs an executor; a power of attorney needs an attorney (this term does not mean a lawyer but a person who can act for you). Realistically speaking, the two functions could be carried out by the same person, such as an adult child or other close relative or friend. Practically speaking, the chosen attorney or attorneys should be at least somewhat familiar with your financial affairs. Not on a day-to-day basis necessarily, but the big picture. They should have some business or financial acumen, know how to write cheques, manage a bank account, look after property. Above all he, she, or they should be people you trust to watch out for your best interests when you can't any more and who, you feel, will earn the trust and respect of your other family members.
Where do we go from here? The Government of Ontario has provided a very helpful booklet called Powers of Attorney: What you need to know; What you need to do. Subtitled You Decide Who Decides. This is available from The Ministry of the Attorney General, 145 Queen Street West, Toronto, M5H 2N8. The author strongly recommends you obtain a copy as part of the process of planning your powers of attorney. Here are some other considerations, similar in many ways to the planning of a will.
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The Substitute Decisions Act, and the related Consent to Treatment Act, formalize a lot of what has been going on informally in the care (personal and financial) of individuals who have become incapable of managing on their own. In addition they embody some elements of so-called living wills, making it possible for an individual to specify the type of care to be provided in the event of a mental or physical incapacity. So we have a new playing field for these issues. They should be reviewed on a regular basis anyway but with new rules we have new sets of rights and responsibilities that everybody over the age of 18 needs to consider, even if you already have given a power of attorney to somebody close to you.
There are two types of powers of attorney and you should consider having both. One is like a living will and is called the Power of Attorney for Personal Care. This is the new one. You can specify in the Power the kind of care your attorney is to arrange for you if you are unable to arrange it for yourself. The attorney you choose does not have to be the same person as you choose to look after your financial affairs although this might be a good idea. You can include clauses about relief of pain, not having your life prolonged by artificial means, the indignities of deterioration, shelter, clothing, hygiene, personal safety, health, and personal care.
An old power of attorney will only relate to financial matters, not personal care. Old powers of attorney that specify, "In accordance with the Powers of Attorney Act, I declare that this power of attorney may be exercised during any subsequent legal incapacity on my part", can continue to be used with respect to dealings with property. These Powers of attorney were provided in order to achieve effective management of an estate during a time of mental or physical incapacity. Without this clause, however, they may be invalid. So best to revisit the whole issue and update all instructions with your lawyer. These are the property powers of attorney now, as distinct from powers of attorney for personal care.
The two acts noted above are designed to simplify how people, and their money, will be looked after when they are no longer able to look after themselves. If you do not specify your instructions the Government of Ontario will do that for you through the Office of the Public Guardian and Trustee. We now have a similar situation to an intestacy wherein an individual dies without a will.