Powers of Attorney: What are they, and why do they matter?

In short, a Power of Attorney is a legal document that gives someone (let’s call them your Attorney) the authority to act on your behalf.  There are different types of Powers of Attorney:

  • Power of Attorney for Property given for a particular situation
  • Continuing Power of Attorney for Property
  • Power of Attorney for Personal Care

Powers of Attorney can be very useful documents, and having them in place can save you and your loved ones a lot of time and money.  For example, if you were to become mentally incapable of making decisions, a Continuing Power of Attorney for Property would allow the person (or people) you name as your Attorney to ensure that your bills are paid, and a Power of Attorney for Personal Care would allow the person/people you name to make decisions about the type of care you receive and where you would live.  If you do not have Powers of Attorney in place before becoming mentally incapable, then in most cases there will be no one with the legal authority to make these types of decisions, in which case someone will likely have to apply to Court to obtain this authority.

Considering the low price and relatively simple process involved in preparing Powers of Attorney, I generally recommend that clients make Powers of Attorney at the same time as they make their Wills, if they don’t have them in place already.

Below is a basic summary of each of the types of Powers of Attorney I’ve mentioned above.

Power of Attorney for Property for a particular situation

This type of Power of Attorney allows someone to make financial decisions on your behalf, but it cannot be used if you become mentally incapable.  You may want to use one of these if, for example, you’re going to be away for an extended period of time and want someone to be able to handle financial matters on your behalf while you’re gone.  You can include specific conditions in the document, such as an effective date and expiry date, and you can specify the particular areas of authority you are giving to the person.

Continuing Power of Attorney for Property

This type of Power of Attorney is similar, but it will continue to be effective if and when you become mentally incapable (as long as it meets specific requirements under Ontario law that allow it to do so).  It generally gives your Attorney the authority to do anything relating to financial matters on your behalf that you could do while capable, except make a Will.  You can specify conditions and limits in a Continuing Power of Attorney for Property, but it may not be advisable to do so since it’s impossible to know what kinds of situations may come up.

Power of Attorney for Personal Care

This type of Power of Attorney allows the person you name as Attorney to make decisions about the care and medical treatments you receive, your housing, and other decisions relating to your personal care.  As with Powers of Attorney for Property, you can limit the authority given to your Attorney.  Some people also use Powers of Attorney for Personal Care to list specific types of medical care they do not wish to receive.

Closing Comments

As I said above, Powers of Attorney are relatively easy to put into place while you’re mentally capable, but may be impossible to make once you’re not.  It’s also important to note that you can revoke a Power of Attorney at any time, as long as you have the mental capacity needed to do so under Ontario law.

As with a Will, it’s important to review your Powers of Attorney periodically and update them as your circumstances change.

If you have questions about Powers of Attorney or would like to discuss making your own Powers of Attorney, please contact me and I’d be happy to meet with you.

Please note that this post discusses Powers of Attorney under the laws of the Province of Ontario, and laws in your jurisdiction may be different.  Nothing written in this post should be considered to be legal advice. For personalized advice on your particular situation, please contact me for an appointment.

Why Do I Need a Will?

I get asked this question a lot.  It often includes something along the lines of “Won’t my stuff be given to my family anyways?” or “Won’t my family know what I would have wanted?”  Well, maybe. In reality, these questions are often more complicated than they seem.

Those of you who watch Downton Abbey may remember the confusion and uncertainty in the Crawley household after Matthew’s untimely death, before his holograph will was found. This kind of confusion is not uncommon where a person dies without a will, but it is also easy to avoid by taking the time to draft a will while you’re able to do so.

In the following points I’ll discuss some of the main benefits of having a will (and problems caused by not having a will):

1.  Through your will, you get a say in what happens to your “stuff” after you die

If you die without a will, there are laws in place to determine how your possessions will be dealt with.  If, for example, you’re married with kids, a pre-set share (currently $200,000 in Ontario) will go to your spouse, and anything left over will be divided among your children.  The rules go into detail about exactly how this works depending on your situation, basically always looking to progressively more distant family members if there are no living relatives in a closer branch.

This may be what you want to happen, but it does raise a few problems. For one, these rules do not include common law spouses. If you’re in a common law relationship, this law would bypass your common law spouse when distributing your assets, effectively cutting them off.  There are other ways they could receive something (such as property owned as joint tenants with you, or applying for support as a dependant), but these options either need to be set up while you’re alive, or will cost your common law spouse extra time and money, which could have been avoided if you had provided for them under a will.

Another problem with depending on these rules is that your loved ones will have to bear the added costs and delay of applying to Court for the authority to deal with your assets, which leads us to benefit number two…

2.  Through your will, you can give the person of your choice the authority to deal with your assets

If you own property, assets, or a business you should have a will, as your will gives the person you name as executor the authority to deal with your assets and wind up your affairs. As I mentioned above, if you don’t do this, someone will have to apply to Court to obtain the authority to do so. This will of course add to the costs and time involved in dealing with your estate, which means that your loved ones will have to wait longer for their share and that share will likely be smaller than it may have otherwise been.

If you own a business, it is also important to make a succession plan for the business, which can involve specific provisions in your will as well as agreements specific to the business.

3.  Through your will, you can have a say in who will have custody of your children, and how any money they may inherit may be dealt with

If you have children, there are a number of things to consider and be aware of relating to the process of appointing a guardian for your children, but I’ll cover these in a later post.  For now, I’ll just say that a will gives you the opportunity to have your say about who you would like to care for your children if you’re unable to do so.

Your will also allows you to determine how any money your children inherit from you should be managed and used (preventing it from having to be paid into Court until they turn 18, for one), and at what age they should gain control of it themselves (if later than age 18). Again, I’ll cover these issues in greater detail in a later post.

4. Your will can help prevent arguments among your loved ones over your wishes after you’re gone

Even the most close-knit family can find themselves in the middle of unexpected arguments over the wishes of a family member who has passed away. While there may be no way to avoid these kinds of arguments completely, having a will can help to prevent them. In relation to the points above, for example, a well-drafted will can help prevent arguments by giving you the opportunity to:

  • Make sure you don’t unintentionally leave out people you may have wanted to leave gifts for, or who might have expected to receive a gift or support;
  • Name the person (or people) you would like to administer your estate, as this can often be an area that causes disagreement and accusations of unfairness, while your careful choice of a suitable person can help to smooth over these disagreements (also watch for this issue to be covered in a later post);
  • Name the person (or people) you would like to take custody of your children, as this can also be an issue fraught with disagreement, especially if the parents in question have not made an initial decision (and talked to the potential guardians about it!). The worst case scenario here may lead to the child(ren) getting caught up in the foster care system because no one could agree on who should have custody, or no one stepped up or was available, etc. Hopefully it would never come to that for your children, but it’s so important to make this decision and discuss it with your potential guardians, and to update your decision (via updating your will) as circumstances change.

Closing Comments

Making a will is an immensely important investment in the future of your loved ones. It’s true that it often involves uncomfortable conversations and situations you’d rather not think about, as well as taking up time and money in the short term. However, the benefits of having a well-drafted will in place far outweigh the discomfort and hassle of the process (as can working with a lawyer you’re comfortable with).

Obviously, losing a loved one is often a very stressful and emotionally exhausting time in anyone’s life. You can take a huge weight off of the shoulders of your loved ones and help to avoid the problems I’ve mentioned above by setting out your wishes in a will now, while you’re still able to do so.

Hopefully your will won’t be needed for years to come (and, I should note, should be updated regularly as circumstances change), but being prepared will make things far easier for those you leave behind if the unthinkable should happen.

Please note that nothing written in this post should be considered to be legal advice. For personalized advice on your particular situation, please contact me for an appointment and I would be happy to meet with you.