Power of Attorney (POA)
Powers of Attorney (POA) are dictated by each province; in Ontario, a basic form is available from the Ontario Ministry of the Attorney general, www.attorneygeneral.jus.on.ca. Other provinces have access to power of attorney forms on their websites. A lawyer may also be consulted to prepare the form. The form explains the objective of a POA, which is to assign a designate – an ‘attorney’, which in this case does not mean a lawyer, to understand and carry out your wishes in the event you are incapacitated. Family members do not have the automatic right to act on your behalf and the direction of an authorized POA will supersede those of a family member.
POA for Care
The POA for Care is ‘invoked’, or activated, only when the person is physically or mentally incapacitated. This in itself is a very grey area of the law. For example, a person may seem to be neglecting their health or personal care, living in squalor and hoarding, but be mentally capable of making personal and financial decisions, and therefore entitled to do as they wish. Mental capacity, usually defined as the ability to understand the implications of an action or a decision, is assessed by a variety of tests and evaluative instruments, given by a doctor or registered Capacity Assessor, supervised (in Ontario) by the Ontario Ministry of the Attorney General’s Office of the Public Guardian and Trustee.
The POA for Care may also include advanced directives or a ‘Living Will’, which are your specific wishes for extraordinary measures such as intubation or life support. A simple ‘do not resuscitate’, also known as ‘DNR’, only covers the unlikely event of a cardiac arrest; much more aggressive measures are typically taken in a modern emergency room. It is important to know that any type of life support is not withdrawn without extensive discussion with the POA for Care, other family members and the hospital ethics committee.
The POA for Property
The POA for Property is a similar but much more controversial document. Like the POA for Care, the POA for Property is used to direct a person’s business affairs such as banking, bill paying, investments, buying and selling of property, when they are physical or mentally incapacitated. Read more about the power of attorney for property.
POA for Property and Elder Abuse
A major difference from the POA for Care is a dangerous one – the POA for Property may be invoked as soon as it is executed, and may therefore be subject to fraud. There are increasing reports of financial elder abuse from adult children, financial managers or estate lawyers whose valid POA’s allowed them to transfer funds, cash in or redirect investments and sell property without the senior’s knowledge, with tragic results. Having a trusted lawyer discuss, understand and create a customized POA for Property may cost $300-$900 and be well worth the fee. For example you may want to add a clause prohibiting the selling or mortgaging of your property without the agreement of all of your children. If you have designated one of your children to be your POA for Property, you may designate that he or she must provide a monthly accounting to your other children.