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Estate Law


INTRODUCTION
POWER OF ATTORNEY FOR PERSONAL CARE
POWER OF ATTORNEY FOR PROPERTY

INTRODUCTION
In Ontario, the Substitute Decisions Act permits you to create two types of Powers of Attorney.

First, you can name someone to manage your finances and make financial decisions for you. This may include paying some or all of your bills on a regular basis, dealing with some or all of your investments, or completing an agreement to sell your home. The agreement to give someone this power is referred to as a Power of Attorney for Property. Depending on the circumstances and the intended purpose, it may be a continuing Power of Attorney or a non-continuing Power of Attorney.

Second, you can name someone to manage your personal care and to make decisions about your health and well-being. These decisions may include items such as where you reside, what medical care you receive, and, perhaps most significant, whether or not to discontinue keeping you on life support should the circumstances warrant that decision. The agreement giving someone this power is referred to as a continuing Power of Attorney for Personal Care.

In Ontario, both the Power of Attorney for Property and the Power of Attorney for Personal Care are governed by the Substitute Decisions Act.

The person who authorizes another to act on his or her behalf, or in his or her place, is called the grantor of the Power of Attorney. The person who is authorized in the Power of Attorney to carry out certain acts on behalf of the grantor is called the Attorney.

The primary requirements for an Attorney consist of being trustworthy and having a great deal of responsibility and integrity. The Attorney is someone who owes an obligation to the grantor and, at all times, must act in the best interests of the grantor. The Attorney need not be a lawyer, nor an investment advisor. The Attorney should be one who recognizes when it might be appropriate to call a lawyer or an investment advisor.

Careful consideration must be given to the selection of an Attorney. Once selected, the Attorney will have the ability to deal in the name of the grantor, thereby affecting not only the grantor’s property but also their personal care and well-being. By selecting a responsible and trustworthy individual, the possibility of abuse is reduced. In some instances, the selection of two Attorneys to act together can reduce the possibility of abuse, though the requirement of two Attorneys acting together may lead to certain impracticalities.

Along with the consideration of trust and responsibility, there is the practical consideration of whether the Attorney can be readily available on short notice. Whether the Attorney is required for medical decisions, or financial management of the estate, certainly the geographic practicalities come into play. The concerns of timing and practicality increase if there are two Attorneys who must agree at the same time.

The scope of power given to the Attorney under a Power of Attorney can vary greatly. It may be restricted to a single act, such as the execution of certain documents while the grantor is unavailable, or it may be virtually unrestricted. A review of the specific powers and circumstances under which the Power of Attorney is granted will be required to determine whether the Power of Attorney should have specific restrictions or limitations.

POWER OF ATTORNEY FOR PERSONAL CARE
Under this document, the grantor gives the Attorney authority to manage the physical health and well-being of the grantor. It is utilized in situations where the grantor is not able to make decisions for their own physical care. The applicable situations may range from setting out a meal program to making decisions as to medical procedures, including termination of life-sustaining medical care.

The power of Attorney for personal care can contain instructions on how the Attorney should handle extreme situations, such as emergency medical care right through to whether the grantor should, under pre-defined circumstances, be removed from life-support systems. The instructions may be fairly broad. However, as with all other agreements, the instructions should be clear and reasonably simple to follow. Ambiguous instructions are to be avoided.

The Power of Attorney need not be utilized so long as the grantor is capable of making decisions on their own. When the mental capacity of the grantor diminishes to a certain point, the Power of Attorney ought to be utilized.

POWER OF ATTORNEY FOR PROPERTY
The Power of Attorney for Property is designed to permit the Attorney to deal with the grantor’s financial matters. It may be as simple as permitting the Attorney to deal with the day-to-day financial obligations of the grantor. It may be more complex, dealing with the investments and larger assets owned by the grantor.

The Power of Attorney may focus on a specific task for a limited time (both the start date and the end date), or may be very broad, without restrictions as to scope of power or as to time. As the Power of Attorney becomes more broad with fewer restrictions, it is more important that the Attorney be someone that the grantor inherently trusts. Without doubt, there is the possibility that the Attorney can abuse his or her power.