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 allows you to specify your wishes regarding your health care, it does not require you to name someone to follow through on these wishes. Most provinces allow you to create a legal document under some form of personal and health care act to specifically name a person to make health care decisions for you. In Quebec, it is referred to as a “Mandate in Case of Incapacity” (hereafter referred to as the “Mandate”).  Other provinces have similar legal documents referred to by such names as Power of Attorney for Health Care, Representative Agreements, Personal Directives, Healthcare Directives, or Advance Directives and Health Directives. Whichever one applies to you, it is imperative that you consider preparing it while you are still able to do so.

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 treatment facility
  • 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:

PROVINCE Name of directive for health Name of directive for property
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 Advance Directive 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 on health care decisions. Priority would be given to a court-appointed guardian. Where it is not possible to appoint someone from your family, or in case of disagreements, the Office of Public Guardian and Trustee (or the Curateur Public in Quebec) would intervene on your behalf.

With respect to the management of property, it is not automatic that the same people mentioned above will have the right to administer your property without legal appointment. Again the rules differ between provinces.  Depending on the severity and scope of a person’s incapacity, someone can make an application with the court to act as your representative. Otherwise the Office of Public Guardian and Trustee (or the Curateur Public in Quebec) would appoint a representative. In Quebec, a tutor or curator, under supervision, can be appointed depending on whether the incapacity is temporary or permanent.

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/mandatary

The choice of attorney/mandatary is an important one. (The word ‘attorney’ refers in this case to the individual or individuals to whom you give Power of Attorney, and not necessarily to a lawyer.) While spouses are the usual first choice, you may, for example, consider naming someone who is an integral part of your business to take care of day to day business decisions. Your Power of Attorney for Personal Care and Property (and/ or Mandate) can specify how this person would report back to your spouse or other named mandatary. Basically, the responsibility of who takes care of you and who takes care of some or all of your assets can be divided between two or more individuals. Each situation is different and should be addressed based on your unique circumstances. Because incapacities can last for years, considerations should also be made for replacement mandataries in the event that your first choice cannot act or refuses to act on your behalf.

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).