Occasionally there’s a little confusion as to who does what and when. The question asked was “I have a Will; why do I need a power of attorney?” Most people have a good idea of what an executor does but sometimes don’t understand that this is an after-the-fact appointment and that having a power of attorney (or two) in place could provide a certain amount of protection should it be needed. You do not need a lawyer to complete the forms.
A Power of Attorney (“PoA”) is a legal document that gives someone else the authority to act on your behalf in specific or general, health or financial matters. This “someone” is now your attorney. Generally, PoAs are used by your attorney should you become mentally incapable (not being able to understand information or understand the potential consequences of a decision) due to illness or accident. There is also a non-continuing PoA that can be used for limited financial matters. The attorney you choose should be the person that you think would be the best for the task. It may be the same person as your executor, it may not. Each PoA can have a different attorney but they should be able to work together if necessary. In all cases, they must be people that know your wishes and that you trust absolutely. In Ontario there are three different PoAs each with its own specific use and conditions. The following is just a brief outline.
- Non-continuing Power of Attorney for Property
This PoA is intentionally limited to a specific purpose or for a specific amount of time with regard to financial matters such as while you are out of the country for an extended period. The form is the same as that used for the Continuing Power of Attorney for Property but with conditions and restrictions written out. It cannot be used by your attorney if you become mentally incapable.
- Continuing Power of Attorney for Property
This is the “enduring” or “durable” PoA and is used by your attorney to act for you in regard to your financial matters and can be used if you become mentally incapable. Your property still belongs to you – your attorney is merely acting on your behalf. This document is required by financial and other institutions in order for your attorney to access information or funds.
- Power of Attorney for Personal Care
Should you become mentally incapable this PoA gives your attorney authority to speak for you with regard to your health care, nutrition, hygiene, housing and safety.
Should you require any sort of extended health care, both the Continuing PoA for Property and the PoA for Personal Care may be needed to ensure that you are looked after properly and that services can be paid for.
The Ontario Ministry of the Attorney General provides both a Power of Attorney Kit and information about Powers of Attorney and Living Wills on their website. If you are outside Ontario please check with your provincial government website.
The bottom line is that your attorney acts for you when you’re alive; your executor acts for you when you’re not.