POWER OF ATTORNEY
Powers of Attorney documents or often called “POAs” are legal documents that are used to appoint legal substitute decision-makers for an individual. They must be ‘granted’ by a person that has the requisite mental capacity to do so, and are often thought about as part of estate planning. The person signing the POA is the ‘grantor’ and the person named as the decision-maker in the document is called the ‘attorney’. The ‘attorney’ in the context of a Power of Attorney does not refer to or mean a lawyer.
The two most common Power of Attorney documents are, the Power of Attorney for Property and a Power of Attorney for Personal Care. There is also Limited Power of Attorney documents that can be put in place for temporary or restricted grants of authority to make decisions on one’s behalf. These “limited POAs” are most commonly used when a person entering into a transaction may be out of the country or otherwise unavailable for the closing and therefore requires a legal substitute to execute documents on his or her behalf.
Power of Attorney for Property
This document is, in Ontario usually made “Continuing” – meaning it is inoperative and ineffective upon it’s signing, and will come into effect upon the grantor’s incapacity to make decisions regarding his or her property, and will ‘continue’ to be effective despite the grantor’s incapacity. A POA for Property document is, as its name would indicate, a “powerful” document. The authority given to the substitute decision-maker is often broad and invasive. Getting the proper advice and direction from a lawyer in drafting this POA is vital if you wish in any way to limit and/or restrict these powers. Essentially, without restrictions, the substitute decision-maker can do anything that the grantor could do with the exception of making or amending the grantor’s Will.
If an incapable adult does not have a POA for Property document in place, Ontario’s Public Guardian and Trustee will de facto become the person’s substitute decision-maker, until and unless someone applies to the court to become the incapable person’s legal guardian? To avoid having to go through this legal proceeding, it is recommended that while capable, people execute a POA for Property.
Power of Attorney for Personal Care
In Ontario, if you cannot make decisions for yourself in respect of your personal well-being, or give consent to medical professionals to treat (or not to treat) you, you can appoint a substitute decision-maker by way of a Power of Attorney for Personal Care document. This POA extends beyond that of giving consent to medical treatment and includes the authority to make decisions on your behalf regarding where you live, your nutrition, safety and overall care. In fact, if you did not have a POA for Personal Care, medical consent could still be provided at law by specific family members in a priority order dictated by the legislation. Like for property decisions, the Public Guardian and Trustee can become an incapable person’s substitute-decision maker in the absence of a POA for Personal Care document. Having a self-directed and defined hierarchy of personal care decision-makers is often desired and can easily be achieved by executing a valid POA for Personal Care.
Understanding the duties of a POA
Becoming the decision-maker for an incapable adult under the authority of a Power of Attorney document comes with an enormous responsibility coupled with legal duties and obligations that are not well-understood. Attorneys for property and personal care do not commonly seek advice (although they should) as to what these duties are. POAs are at the root of many family disputes and court proceedings. It is important for anyone that steps into the role of a legal decision-maker for another person to truly understand the authority being granted to him/her or to them under these important documents and to keep accurate records of the decisions being made.
We at NIKA LAW LLP are here to provide you with an overview of your duties, obligations and importantly, your rights pursuant to Ontario law. Mitigate against disputes by knowing the landscape of every situation from a legal standpoint before lawsuits arise. Contact us to learn more and find out how we can help.