Canada: Powers Of Attorney For Property And Personal Care

What is an enduring Power of Attorney?

A Power of Attorney is a document you can sign to authorize one or more persons to make decisions for you concerning your assets and financial affairs. An "enduring" Power of Attorney is one that continues to be effective should you become mentally incapable of managing your affairs after you have signed it.

What happens if I become mentally incapable and I have not signed an enduring Power of Attorney?

A government office or officer (such as the Public Guardian and Trustee of British 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 ideal and both can result in significant and unnecessary complexity and expense for you and your family. Most people would prefer to decide for themselves who should 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 and skills relevant to your personal and financial circumstances. It can also be helpful to appoint 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 find in one person all of the skills and qualities that you may want in your attorney. Appointing one person who knows your children and has the same parenting approach as you do when it comes to financial matters, and a second person who has investment or business expertise relevant to your assets, might be a good way to ensure that the right kind of judgement is brought to bear in decisions relating to you and your family's affairs.

Appointing more than one person also helps ensure continuity in the management of your affairs 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 attorneys to act by majority decision. This can facilitate the administration of your affairs if one of them is travelling or is for some other reason unable to give effect to decisions that must be made. It also builds into the document a dispute resolution mechanism should your attorneys be unable to reach 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 be appropriate to consider including in your power of attorney depending on your personal and financial circumstances.

Powers of Attorney for Personal Care and Health Care Representation Agreements

You may also wish to consider granting to someone the authority to make personal and health care 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 British Columbia, 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 want decisions concerning your personal and health care to be made should you become incapable of making them yourself.

You can appoint more than one person to act, but they should be people you believe will be able to work together co-operatively if difficult issues arise. While they do not have to reside in the same city or province, it might be helpful if at least one of them lives nearby so as to be able to personally 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 they not be subjected to particular procedures, such as blood transfusions. Often people express a wish that heroic measures not be taken to keep them alive if there is no reasonable hope of recovery from some extreme illness or accident. Some people wish to be cared for at home for as long as possible. Others specify that, should it become advisable for them to be moved to a residential care facility, it be a high quality facility that is located close to family, and that private care also be arranged as needed. Our lawyers would be pleased to discuss these and other provisions you might wish to include so as to ensure that the document you sign reflects your personal values and wishes.

Conclusion

Everyone who has reached the age of majority should consider granting an enduring Power of Attorney for property and putting in place a Power of Attorney for Personal Care or a Health Care Representation Agreement so that trusted person(s) can make decisions for them in the event of their incapacity.

The lawyers in our estates, trusts and wealth management group would be pleased to discuss these matters with you.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

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