A Power of Attorney (or “POA”) is a legal document by which an individual gives someone they trust (the “attorney”) the right to make decisions on their behalf if they are no longer capable of looking after their own matters. This authority may be general in nature or limited to specific actions and situations.
This article focuses on the general options available for creating a POA in Canada for provinces other than Québec. For information regarding Québec, please see the article “Incapacity Planning in Québec”. The specific rules for each province vary; please contact a TEP to discuss the rules in your province of residence.
Why have a Power of Attorney?
In personal and estate planning, a POA is generally executed when contemplating the possibility of future physical and/or mental incapacity that renders the grantor incapable of making his or her own decisions. While creating a POA is voluntary in that there is no law mandating that everyone must create one, all individuals over the age of 18 who are competent to grant a POA should consider executing one. In the event of unexpected incapacity, a POA will ensure that a person’s wishes are respected, and that carrying these wishes out is easier and less expensive for their families.
Types of Power of Attorney
Generally, there are two main types of POAs:
- A continuing or enduring Power of Attorney for Property (POAP) covers financial affairs, such as managing investments, granting gifts, or borrowing money. For more information, see “I have been given Power of Attorney. What does that mean?”
- A Power of Attorney for Personal Care (POAPC) (also known as a “Personal Directive”) covers personal decisions, such as housing and health care. For more information, see “I have been given Power of Attorney. What does that mean?”
How to properly execute a Power of Attorney
The law does not require the use of a lawyer’s services to create a POA. However, individuals with even modestly complicated affairs are generally advised to consult a lawyer to ensure that the POA is neither too broad nor too specific, and that the document is executed properly. A POA can be created in a few different ways:
- A lawyer can draft a POA; or
- A grantor can use online forms provided by reputable sources (such as forms made available by the Attorneys General for the applicable province).
Generally, a valid POA must:
- Name the person the grantor has chosen to act on their behalf;
- Be signed and dated by the grantor; and
- Be signed and dated by two witnesses who saw the grantor signing the document.
The witnesses to a POA typically cannot include:
- A grantor’s spouse, partner, child or someone treated by the grantor’s child;
- The person the grantor is naming as attorney or the spouse of that person;
- Anyone under 18 years of age; or
- Anyone who is incapable of making their own property or personal care decisions.
Generally, there is also no requirement that these documents be registered. However, it is important to ensure that the people who need to know about the document – especially the attorney(s) – have a copy of the POA or know where to get one if needed.
What happens if there is no Power of Attorney?
In the event that an individual who does not have a valid POA is or becomes incapacitated, a family member has the right to make health care decisions or apply to become the “guardian” of their person and/or property (the person occupying this role is also known as a “trustee” or a “committee”, depending on the jurisdiction). In certain cases, someone else, such as a close friend, could apply to act for the individual in these matters. The only time the provincial government, through the office of a Public Guardian and Trustee, will act, is in situations where there is no suitable person able or willing to act on behalf of the incapacitated person.
For further information or assistance in preparing a POA please consult a TEP.