What is an enduring Power of Attorney?
A Power of Attorney is a document you can sign to authorize one or more personsto make decisions for you concerning your assets and financial affairs. An“enduring” Power of Attorney is one that continues to be effective should youbecome mentally incapable of managing your affairs after you have signed it.
What happens if I become mentally incapable and I havenot signed an enduring Power of Attorney?
A government office or officer (such as the Public Guardian and Trustee ofBritish Columbia) can be given the authority to manage your financial affairs,or the Court may appoint a person or persons to do so. Neither outcome is idealand both can result in significant and unnecessary complexity and expense foryou and your family. Most people would prefer to decide for themselves whoshould play this role should they become incapable.
Who should I appoint?
It should be someone you trust who can bring to the role of attorney experience andskills relevant to your personal and financial circ*mstances. It can also be helpful toappoint someone who knows your family members and who lives nearby.
Can I appoint more than one person to act as my attorneys?
Yes, and that can be beneficial for a number of reasons. For example, it can be difficult to findin one person all of the skills and qualities that you may want in your attorney. Appointing oneperson who knows your children and has the same parenting approach as you do when it comesto financial matters, and a second person who has investment or business expertise relevant toyour assets, might be a good way to ensure that the right kind of judgement is brought to bear indecisions relating to you and your family’s affairs.
Appointing more than one person also helps ensure continuity in the management of youraffairs should one of the named attorneys become unable or unwilling to act.
If you decide to appoint more than two people, you should consider permitting your attorneysto act by majority decision. This can facilitate the administration of your affairs if one of them istravelling or is for some other reason unable to give effect to decisions that must be made. It alsobuilds into the document a dispute resolution mechanism should your attorneys be unable toreach a consensus on a particular issue.
What other provisions might I include in my Power of Attorney?
There are many provisions you should consider including, for example:
- the appointment of an alternate attorney in case your primary attorney(s) are unable to act;
- a power to use assets for the benefit of your spouse and other family members;
- a power to satisfy any charitable pledges you may have made, or make charitable gifts on your behalf in keeping with the pattern of giving that you displayed while you were capable; and
- a direction that your attorneys be compensated for the time and effort spent attending to your affairs, together with instructions as to how that compensation should be calculated.
Our lawyers would be pleased to discuss with you these and other provisions that may beappropriate to consider including in your power of attorney depending on your personal andfinancial circ*mstances.
Powers of Attorney for Personal Care and Health CareRepresentation Agreements
You may also wish to consider granting to someone the authority to make personal and healthcare decisions for you if you are unable to make those decisions yourself. In some provinces,such as Ontario, this document is called a Power of Attorney for Personal Care. In BritishColumbia, it is referred to as a Health Care Representation Agreement.
Selecting a representative
Again, your representative should be someone you trust who understands how you would wantdecisions concerning your personal and health care to be made should you become incapable ofmaking them yourself.
You can appoint more than one person to act, but they should be people you believe will be ableto work together co-operatively if difficult issues arise. While they do not have to reside in thesame city or province, it might be helpful if at least one of them lives nearby so as to be able topersonally consult with doctors and instruct and supervise caregivers, if need be.
Special provisions to consider in relation to health care
There are many provisions you might think about including. Sometimes people direct that theynot be subjected to particular procedures, such as blood transfusions. Often people expressa wish that heroic measures not be taken to keep them alive if there is no reasonable hope ofrecovery from some extreme illness or accident. Some people wish to be cared for at home foras long as possible. Others specify that, should it become advisable for them to be moved to aresidential care facility, it be a high quality facility that is located close to family, and that privatecare also be arranged as needed. Our lawyers would be pleased to discuss these and otherprovisions you might wish to include so as to ensure that the document you sign reflects yourpersonal values and wishes.
Conclusion
Everyone who has reached the age of majority should consider granting an enduring Power ofAttorney for property and putting in place a Power of Attorney for Personal Care or a Health CareRepresentation Agreement so that trusted person(s) can make decisions for them in the event oftheir incapacity.
The lawyers in our private wealth, trusts and estatesgroupwould be pleased to discussthese matters with you.
