Power of Attorney
Power of Attorney (POA) is a legal document. It gives someone you trust the power to look after your legal and financial affairs. This might include paying bills, depositing or withdrawing money from your bank account, investing your money, or selling your home. The person you give this power to is called the attorney. In this case “attorney” doesn’t mean “lawyer.” It simply means the person you’ve chosen to be your decision-maker.
If you become incapable of managing your financial and legal affairs, no one, not even your spouse, has the automatic right to step in. The “enduring” power of attorney, which is the type used for end-of-life planning, explicitly gives someone the authority to act for you, even when you become incapable.
You needn’t worry that drawing up a POA will immediately strip you of the ability to run your own life. Your attorney can’t override decisions you make while you’re capable.
It’s important to get this document in place now. If you are no longer capable of understanding the nature and consequences of making the POA, then it is too late to make one. If someone needs to apply to the court, or if the court appoints someone, this is a costly, time-consuming process and the best person may not be the one that steps forward.
Choosing your attorney(s) is an important decision, and it’s not always easy. Your attorney will have significant powers and responsibilities. They can be someone who lives outside the province, but that’s not always convenient. You can name more than one attorney and decide if they can act individually or together. It is important to also name an alternate and describe the circumstances in which they may take over.
Most people ask a family member or close friend to be their attorney. You need to choose someone you can trust, someone capable of taking on the responsibility, and who will ensure your wishes come first. Take the time to talk with your candidate about what you want and would expect of them. Make sure they’re comfortable making decisions for you. You can also ask a lawyer, a notary public, a private trust company, or the Public Guardian and Trustee to be your attorney, but this may be difficult and costly to arrange.
Your attorney must be age 19 or older, and able to understand the responsibilities involved. They are often your spouse, adult child(ren), or the executor of your Will. They cannot be a paid caregiver, or an employee at a facility where you live if the facility provides personal or health care services, unless the person providing the care is your child, parent or spouse.
The attorney is like your agent. They must act honestly, in good faith, and in your best interests; not take any personal benefit from your assets; keep accurate records of any financial activities; and keep your affairs separate from their own.
A person can create their own POA document, but if you want your attorney to be able to deal with real estate or vehicle transfers and sales, you need to pay a lawyer or a notary public to prepare and sign the document. The time and cost of creating a POA now is astronomically less than the cost to be in a situation where the need arises, and someone applies to the court to be appointed.
People’s Law School, whose mission is to provide free education and information to help people deal effectively with the legal problems of daily life, is a helpful source of information. This article relied heavily on their website, where you can find more details. NIDUS is another great resource.
Written by Margaret Verschuur