Power of Attorney Assignment (PoA) with Confidence
It is important to plan for disability, ensuring that there is a strategy in place in case you ever become unable to manage your affairs.
We all know that. However, it is uncomfortable to think about and therefore easy to put off.
A key part of disability planning is assigning a power of attorney (a legal document that gives someone else the right to act on your behalf), but it is also the biggest hurdle. Thinking more about who you choose and what powers will be given to you can give you the peace of mind of completing your plan with confidence.
Choose your lawyer
It is essential to choose someone you trust to give you power. Acting as your attorney involves important duties and obligations. Your attorney’s primary duty is to act with honesty, integrity, and in good faith for your benefit if you become incapable.
The law establishes specific obligations for the person chosen to have his power. Among other things, they:
- explain your powers and duties to the incapacitated person
- encourage the incapacitated person, to the best of their ability, to participate in decisions regarding their property
- Encourage regular personal contact between the disabled person and supportive family and friends, and
- keep an account of all transactions involving the property of the grantor.
The attorney or attorneys you choose to act on your behalf should know these rules and also know other rules set forth in the act.
For example, they are expected to make sure that you have a will and, if so, that they know its provisions. The main reason for this is that your attorney should not sell or transfer property that is subject to a specific gift in the will, unless necessary.
The law also contains explicit instructions regarding mandatory and optional expenses. Examples of the latter include charitable gifts in which an incapacitated person incurred similar expenses when they could and provided sufficient assets are available. Your attorney should also be familiar with the rules that cover how and when you can resign, what compensation they may be entitled to, and the level of care expected of them.
Safeguarding your heritage
You can also include a second opinion directly in your power of attorney by appointing more than one person. If you name two or more people, they must act unanimously unless the document indicates otherwise.
A joint appointment provides a level of protection that any appointed attorney must agree to in all actions, while a “joint and several” appointment provides flexibility, allowing any attorney to conduct business independently.
Many people choose to appoint the same trusted individuals or companies to be both their power of attorney and their executors. Although you don’t have to, the same list of key characteristics – experience, availability, responsibility, and reliability – applies to both roles.
It is also possible to limit the powers granted to your lawyer. If you want your attorney to act only for a specific period of time (perhaps a vacation or hospital stay) or in connection with a specific transaction (closing a real estate deal), a power of attorney is worth considering. limited or specific.
In the case of a continuous general power of attorney, many people want the document to be used only if and when they become unable to manage their affairs on their own.
While the document is effective when signed, it is possible to include provisions in the document itself that postpone it to a future date or the occurrence of a specific condition (for example, the grantor has a stroke). These are sometimes called “emerging” powers of attorney.
Regardless of how you prepare your power of attorney documents, careful consideration of who you choose, as well as taking advantage of available guarantees, will help ensure your confidence in your disability plan.
Common mistakes to avoid
- Make a quick decision: Many people name their PoAs without thinking about their financial capacity of choice, much less their ability to get along with other family members.
- Assuming that family is always the best option: It is much more important to choose someone who truly cares about the best interests of their client.
- Waiting too long: If the issue of declining capacity already exists, it’s probably too late to make a power of attorney ironclad.
- Failure to review it – Changing life circumstances and new provincial legislation can invalidate an old PoA.
Disability plan
Your estate plan doesn’t end with an updated will. You must also anticipate a possible future disability, which generally means preparing powers of attorney for property and personal care.
Power of attorney, a legal document that gives someone else the right to act on your behalf, has two main types: one for property management and one for personal care.
Estate and will planners generally advise preparing both types of powers of attorney. While they are often prepared at the same time as your will, they can be created at any time.
Personal care
With a power of attorney for personal care, you can authorize someone to make decisions related to your personal care in case you are unable to make them yourself.
You can grant a power of attorney for personal care if you are at least 16 years old, have “the ability to understand whether the proposed attorney has a genuine concern” for your well-being, and can appreciate that the attorney may need to make decisions.
Personal care includes decisions related to health care, nutrition, shelter, clothing, hygiene, and safety.
Property
A continuing power of attorney for property authorizes someone to do anything about your property that you could do if you could, except make a will.
The law says that you can grant power of attorney for property if you are at least 18 years old, know what type of property you own, along with its approximate value, and are aware of the obligations owed to your dependents. .
The term “ongoing” (sometimes called “durable”) refers to a power of attorney that can be exercised during the grantor’s subsequent inability to manage the property. Make sure the document states that you want the power of attorney to be used only if you become incapable.
What you need to know
A continuing power of attorney for property is a powerful document. Unless otherwise stated in the document, it is effective when signed, granting considerable power of attorney.
In fact, the law explicitly requires you to recognize that this authority can be misused. And, as part of the ability test to grant a continuing power of attorney, you must also recognize that the property you own may lose value if not managed properly.
A financial institution, title office, or other third party who is presented with a continuing power of attorney for the property with the restriction “effective only in case of grantor disability” will want evidence of disability.
That evidence could be hard to come by. One solution is to establish the terms of use in a separate document and have all the original copies of the power of attorney in the hands of a trusted third party. For example, you could order that document to be published only if:
- You tell the lawyer that you want him to start acting;
- You are declared legally incapable of managing your property;
- One or more physicians report that they would benefit from assistance in managing their affairs; gold
- Certain family members advise that the attorney begin to act.
No address can be expensive
If you do not prepare the power of attorney documents, an application may be filed with the court before someone can be appointed to make decisions for you. That can leave you struggling when you’re not in physical shape. Having a will does not help because an executor is only authorized to act after your death.
On top of that, court proceedings can be costly and time consuming. Depending on the circumstances, the public guardian and trustee may have to participate.
You also lose the opportunity to designate individuals or companies of your choice and are unable to set parameters regarding the actions of your surrogate decision makers.