Understanding Power of Attorney

Understanding Power of Attorney

Powers of Attorney are simple but powerful documents. They are a necessary part of planning for absence or incapacity but they are also an opportunity for abuse. There are two types.

Power of Attorney for Personal Care

This gives another person the right to act on your behalf with respect to medical and health care decisions.

Power of Attorney for Property

This gives another person the authority to act on your behalf with respect to your property. An attorney for property gives that person the ability to do ANYTHING you can do, except make your will.

The person giving a power of attorney must have legal capacity and be signed in front of two witnesses.

A power of attorney can come into effect immediately, or upon the person giving the power of attorney losing capacity. They are effective only during the lifetime of the person giving it. Once a person dies the power of attorney is terminated.

If you don’t have a power of attorney and become incapable of making decisions regarding your property and personal care, no one has authority to deal with your assets or make decisions regarding your health. In this case application must be made to a court to grant a guardianship. This is an expensive and lengthy procedure.

Clearly you must pick a person you trust! Whoever you choose to hold your power of attorney is required to perform their duties diligently, honestly, with integrity and in good faith (fiduciary duty). All decisions must be made with your best interests in mind. Lawyers who are chosen to hold power of attorney are held to a higher standard of care and must avoid conflicts of interest. Clearly you must pick a person you trust!

Thanks to Kate Grossi and Michael Clark of Korman and Company for this valuable information.

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Marian Neal

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723 Mount Pleasant Road
Toronto  ON M4S 2N4


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