Do you ever think about what would happen to your investments or who would pay your bills if an accident or illness prevented you from doing so? More importantly, who would take care of you should you become mentally incapacitated? These are difficult subjects and situations that we would all prefer to avoid. Yet wishful thinking is no substitute for proper planning. Make 2016 the year you take control by learning about the Power of Attorney for Personal Care and Property. It’s easier than any new diet or exercise regimen and arguably even more important.
The Power of Attorney for Personal Care and Property (please note that these are two separate Power of Attorney documents; the first being for Personal Care, the second for Property) differ from a living will. While a living will
The individual (or individuals) to whom you give Power of Attorney over your health directives will be responsible for every aspect of your care, including the following:
- Choice of
- Choice of care
- Instructions for future health care providers
- End of life decisions
Similarly, the individual (or individuals) to whom you give Power of Attorney over your property directives will be responsible for every element of your property, including:
- Banking matters (opening and closing accounts)
- Managing investments
- Running your business
- Buying and selling real estate
- Paying bills
- Renewing insurance
- Applying for pension and other benefits
- Collecting assets and debts owed
Below is a table of the different Power of Attorney for Health Care Directives and Power of Attorney for Property Directives that exist across Canada:
|Alberta||Personal Care Directives||Enduring (or springing) power of attorney|
|British Columbia||Representation Agreement and Advance Directive||Enduring Power of attorney|
|Manitoba||Health Care Directives||Enduring power of attorney|
|New Brunswick||Power of Attorney for Personal Care||Durable power of attorney|
|Newfoundland and Labrador||Advance Health Care Directive||Enduring Power of attorney|
|Northwest Territories||Personal Directive||Enduring Power of attorney|
|Nova Scotia||Personal Directive||Enduring Power of attorney|
|Nunavut||None||Springing and Enduring Power of attorney|
|Ontario||Power of Attorney for Personal Care||Continuing power of attorney for property|
|Prince Edward Island||Health Care Directive||Enduring Power of attorney|
|Quebec||Mandate in Case of Incapacity||Mandate in Case of Incapacity|
|Saskatchewan||Power of Attorney for Personal Care and Health Care Directive||Enduring Power of attorney|
|Yukon||Enduring Power of attorney|
What happens if you don’t have a Power of Attorney for Personal Care and Property?
Laws and regulations differ between jurisdictions, however, most provinces would look to your closest family members to represent you
With respect to the management of
Do not confuse a General Power of Attorney with a Power of Attorney for Personal Care and Property
A general power of attorney gives someone the ability to act on your behalf but is only valid as long as you are capable of revoking it. The Power of Attorney for Personal Care and Property (and/ or Mandate) only takes effect upon an illness or incapacity and provides continued administration of your person and property.
Why should you prepare a Mandate or Power of Attorney for Personal Care and Property?
The benefits of having a Mandate or Power of Attorney for Personal Care and Property allow YOU to:
- Clearly define your wishes in the event of an illness or accident which leaves you incapable of acting for yourself.
- Choose what your accommodations should be, stay at home with in-home care or be hospitalized.
- Give guidance to your mandataries with respect to the level of medical care, and if necessary, end of life decisions.
- Decide who will manage your affairs for both health care and property.
- Specify how you wish your property to be administered, pay bills, manage investments, etc.
- Provide instructions as to who should act as legal guardians to your minor children during your incapacity.
You can choose to prepare a detailed Power of Attorney for Personal Care and Property (and/ or Mandate) or one that is more general in nature. Opting for a general one grants more flexibility to the person or persons you designate as your mandataries.
Choosing your attorney/
The choice of attorney/
Planning ahead is your best option.
While you are mentally capable of choosing someone to take on these responsibilities, you should consider doing so now by preparing a Power of Attorney for Personal Care and Property (and/ or Mandate) witnessed by two individuals. The two witnesses cannot be acting as mandataries. All provinces will require confirmation of your incapacity before allowing for a Power of Attorney for Personal Care and Property to be enacted. In Quebec, the Mandate has to go through homologation to be declared valid. Homologation is a process of validating the Mandate by a court in the jurisdiction where the individual resides. To be declared valid, the Mandate must be presented to the court along with medical and psychosocial assessments. In Quebec, you have the option of having your Mandate prepared by a lawyer or a notary.
While you can use preprinted forms available online for a small fee, we would highly recommend that you prepare your Mandate through a notary or lawyer who may provide invaluable advice as to what should be included. It might cost you more but you will rest assured knowing that you and your affairs will be properly taken care of.
Ask your team at Tulett, Matthews & Assoc. about how we can help create or review your Power of Attorney for Personal Care and Property (and/ or Mandate) to ensure that it accurately reflects your intentions.
While this article tries to address several issues involved in properly drafting a
Power of Attorney for Personal Care and Property in Case of Incapacity (and/ or Mandate), it is not meant as legal advice. It is essential that you seek advice from a legal professional who can guide you through the process of making the proper decisions in preparing your Power of Attorney for Personal Care and Property (and/ or Mandate).