COLUMN: Why have Powers of Attorney?

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Life can throw a curveball to anyone.

An accident or unexpected illness can dramatically impact someone’s ability to make financial or health care decisions for themselves.

In such cases, it can be essential to have someone make those decisions for you.

A Power of Attorney (POA) is a legal document that gives someone you trust the right to make financial or health-care decisions for you. The person you name is called an attorney but does not have to be a lawyer.

There are two types of Powers of Attorney: for property, and for personal care.

An attorney for property can make decisions about your financial affairs such as paying bills, collecting monies owed to you, maintaining or selling your house, and managing investments. The attorney cannot change the terms of a Will.

If you do not have a Power of Attorney for Property (POAP), a family member, including a spouse, cannot automatically step in to make financial decisions for you. They might have to go to court to become your court-appointed guardian.

With a POAP, a person appointed to be your attorney may start making decisions about your financial affairs immediately unless you state otherwise.

The POAP usually states that your attorney can only make financial decisions if you become mentally incapable.

Under a Power of Attorney for Personal Care (POAPC), your attorney can make decisions about your health care, housing, and such matters as meals and clothing.

The POAPC should state what you want to happen if you need medical care and are unable to consent to or refuse treatment. For example, people often direct their attorney that they do not want life support if they have no hope of recovery.

If you do not have a POAPC, family members can make some decisions, but not all.

You should choose a person you trust to act as your attorney: your spouse, a family member, or a close friend. Never feel pressured to make someone your attorney. The attorney for the POAP can be a different person than for the POAPC, depending on their skills and experience.

To make a Power of Attorney, you must be mentally capable. Someone with dementia is unlikely to have the requisite mental capacity.

To make a POAP, you must be at least 18 years old. To make a POAPC, you must be at least 16 years old.

Is it a good idea to use online forms to create your own Powers of Attorney? Probably not. 

A lawyer will be able to answer your questions and draft the Powers of Attorney so that your wishes will be clear and able to be legally followed.

Prior to the Covid-19 pandemic, lawyers at Chatham-Kent Legal Clinic drafted POAs for low-income clients. That service was suspended but we intend to offer it again in 2024.

If you are not low-income, consider asking a private bar lawyer to draft POAs for you. 

Everyone should consider having both a POAP and POAPC in place, regardless of their age or financial situation.

  • Walter Van de Kleut is CKLC executive director (www.cklc.ca, 519-351-6771).

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