This week we continue our estate planning series by once again looking at the power of attorney. In our first post on powers of attorney, Why a Power of Attorney is Just as Important as a Will, we looked at what a power of attorney is and what are the consequences of not having one. As a brief recap, a power of attorney is a legal document that gives someone the right to act on your behalf. If you don’t have one, the laws in the province in which you reside will determine who is responsible for making important financial decisions on your behalf. In this post we’ll go over the different types of powers of attorney and how to decide who to choose as your attorney.
Different Types of Powers of Attorney
Many people may not realize it when estate planning, but there are different types of powers of attorney. There’s one for property (i.e. your home, vehicle, etc.) and one for personal care and health. Each type has authority for either personal care or property and is not interchangeable. That means that a power of attorney for property doesn’t allow the attorney to make decisions about the grantor’s (the person who the power of attorney is for) personal care and health and vice versa. That being said, the attorney can be the same for both property and personal care if it is explicitly stated. If you decide to go down this route, you’ll need separate documents appointing the same person for both.
A power of attorney isn’t just for when/if one is mentally incapacitated. It can also be for when, say, you’re travelling around the world and you’re not present to make time-sensitive financial decisions.
An Enduring Power of Attorney
It’s crucial that you have an enduring or continuing power of attorney. A power of attorney without an enduring clause becomes invalid if you become ill and unable to make decisions on your own behalf. There are typically two types of enduring powers of attorney:
- The general power of attorney includes the enduring clause.
- The enduring power of attorney comes into effect when an event is triggered. The most common event is when the grantor is mentally incapacitated (often referred to as a “contingent or springing” power of attorney). Please note that the enduring power of attorney may not be recognized in some provinces, so it’s important to speak with your lawyer before setting one up to ensure it’s done correctly.
Who Should You Choose to be Your Power of Attorney?
As mentioned in our previous article, it’s important to choose someone that you trust. You’ll want this person to act in your best interest when you’re not able to and to make important decisions regarding your health and financial affairs. Not only should it be a trusted individual, it should be someone with the skills and knowledge to look after your property.
You can appoint one or more people to be your powers of attorney. A common arrangement is to name a trusted family member as your attorney for personal care and your financial institution for property. Once you pass away your power of attorney is no longer valid, that’s why it’s so important to have a will.
There are have it, everything you need to know on powers of attorney. We’ve done our best to break it down into simple terms, but it’s best to seek out help from someone who’s experienced in estate planning. We have a team of experts who can help you navigate the sometimes complex waters of estate planning. Feel free to contact our office today.