Powers of Attorney

You may think having a proper will is one of the most important things you can provide your family with in the event of your death. But putting in place suitable power of attorney documents to handle matters while you’re still alive could have an even greater impact on them.

There are three distinct phases in life during which you conduct business:

  1. While you are alive and well
  2. While alive but ill or unable to conduct your business
  3. After death, when your executor conducts your business

Power of attorney documents are used for the second phase, while you are alive but incapacitated. Examples might include if you:

  • Are temporarily hospitalized
  • Become ill for a lengthy period of time
  • Suffer a stroke or accident
  • Suffer mental incapacity
  • Are out of the country

When assigning an “attorney”, you are choosing someone to act on your behalf and to take care of your financial affairs or medical care, should you lack the capacity to do so. Your appointees have enormous power and responsibility over your life because they are charged with ensuring your needs and wishes are met, while you’re still alive. Use the Incapacity Planning Questionnaire to assist you with the selection process.

Putting in place power of attorney documents can be difficult and stressful. However, if done properly, it can provide you and your family with enormous peace of mind, knowing your wishes and finances are on stable ground. Careful and proper communication with family members now can minimize or avoid family conflict at a very difficult time.

While every independent adult should have both a financial and a health care power of attorney, the need becomes greater as you age. It’s imperative to arrange for a power of attorney before you lose your mental faculties, or you are unable to handle your affairs. Be sure the power of attorney is in place when needed. Otherwise, it will be too late.

Types of Powers of Attorney

There are two basic types of powers of attorney: enduring power of attorney for property and power of attorney for personal care. These will be discussed in more depth in the paragraphs that follow.

Enduring power, or continuing power, of attorney for property (known as a "mandate in anticipation of incapacity" in Quebec), pertains mainly to your financial affairs. “Enduring” signifies it will continue beyond mental incapacity and will govern most situations related to property. For example, to:

  • Sell your house or other property
  • Invest your money as if you are doing it
  • Sell or buy shares or other equities

The power of attorney for personal care (also known as a "personal directive"), pertains to your health care but also to your accommodations. Your appointed power of attorney will be authorized to make decisions for you regarding your health care when you can’t, due to mental or physical incapacity.

Parents are often surprised to learn that they have no legal standing in directing the financial and medical affairs of a child age 18 and older if the child becomes incapacitated.

Investigate

In Canada, each province has different names, rules and protocols regarding powers of attorney. Individuals should consult an attorney licensed in the province, where the power of attorney is to be held, for assistance or queries regarding it.