POWER OF ATTORNEY FOR HEALTH AND PROPERTY
At some point in our lives it is no doubt possible that we could become mentally or physically incapable of making decisions for ourselves, either because of aging, injury or illness. By drafting a proper power of attorney in advance, you can permit others to make decisions on your behalf in case you become incapable of making your own choices. Powers of Attorney are also very useful tools in estate planning. They provide a mechanism for an individual to maintain some element of control over the administration of his/her affairs in the event that person becomes incapacitated – meaning they allow you to chose someone that you love and trust to make decisions for you if you can’t make decisions for yourself.
Why do you need a Power of Attorney for your personal care and finances?
In Ontario, whether or you are young, a senior citizen, sick or injured – you are not legally forced to name an substitute decision maker to help take over your decision making if you become incapable – but there is no doubt you should. If you are hurt or you lack the capacity to make your own decisions because of an illness, how will you pay your bills? How will you decide what medication to take or what healthcare you will receive? What you will eat? How will you deal with your rent, your food or shelter?
In Ontario, if you are over the ages of 18 (for property) and 16 (personal care) and you are mentally capable, you can give the power to a loved one or friend to make decisions on your behalf if you become sick or hurt. That person would be called your Attorney and the document would be called a Power of Attorney (In the United States, the word “attorney” is often used instead of lawyer. In Canada, a Power of Attorney is not a lawyer, but rather a legal document.) In Ontario, a Power of Attorney lawfully allows you to appoint someone you trust, in advance, to make decisions for you if you become mentally incapable of making a decision in the management of your property, or you are not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. You are certainly able to contact our Hamilton Law Firm if you or a family member requires a Power of Attorney for Property or Personal Care. You can also have your Powers of Attorney documents drafted by our Hamilton Lawyers at the same time as your Will and Estate planning documents.
What kind of Powers of Attorney do I need – and what are the differences?
In Ontario there are two types of Powers of Attorney – Powers of Attorney for Personal Care (Health) and Powers of Attorney for Property (property & finances)
Power of Attorney for Property
With a continuing Power of Attorney for Property, you can provide legal authority person(s) you wish to make decisions about the management of your property and finances if you become incapable to make your own decisions. The person who is named as the attorney does not have to be a lawyer and in fact, should be a loved one or good friend. The power of attorney is sometimes called a “continuing” power of attorney because it can be used after you are no longer mentally capable to make the financial decisions.. When we speak of property, we mean things such as:
- your finances
- your financially related decision or transaction t
- managing your income
- managing your spending
- maintaining your assets
- managing your debts
- paying your bills
- maintaining your budgeting
- filing your tax returns
- safeguarding your valuables
- selling real estate
- loaning or collecting money
Power of Attorney for Personal Care
With a Power of Attorney for Personal Care, you can provide the person(s) you chose with the legal authority to make decisions about your health care, nutrition, and diet, shelter, clothing, hygiene and safety, and medical treatment. Similarly to the Power of Attorney for Property, you are giving your Attorney the Authority to make decisions about your personal care should you become mentally incapable to make your own decisions that involve things such as
- where you live
- what you eat
- provide or refuse medical treatment
- the medication you ingest
- your death
- the kind of medical treatment you receive
Who determines that you are incapable of making your own decisions?
It depends on the situation – but short of the obvious (meaning you have suffered trauma or a long term illness) we ensure to provide written instructions in your Power of Attorney that two qualified medical assessors are to perform a capacity assessment to determine and/or confirm that you are mentally incapable of managing your health and property. Your power of attorney will then come into effect when you are deemed incapable of managing your own health and/or property.
In short, your power of attorney comes into effect when your attorney is notified in the prescribed form by a medical assessor that the medical assessor has performed a a proper medical capacity and has found that you are incapable of managing your own property or making your own decisions.