With a growing population which is ageing quickly, there will be more Canadians who may become incapable of handling their own property and health care matters.
A person can grant another person the right to manage their health and financial matters and take appropriate decisions. The grantor can award a power of attorney to protect their interests when they are incapable of doing so. It is essential to understand the complete scope and nature of a Power of Attorney.
Using the Power of Attorney
Making power of attorney decisions is crucial. All the decisions need to be made by the attorney in a planned and strategic manner. If an attorney is not chosen wisely by the grantor, it can adversely impact the grantor and their estate. Sometimes the attorney may not have the requisite knowledge to make the best decisions in the interest of the grantor, while sometimes they may even act for their own benefit.
If you have been recently appointed as an attorney and need guidance on your responsibilities and obligations, connect with the experienced Estate Lawyers at Nanda & Associate Lawyers. We can help you understand your possible options and make sure that your or your loved ones’ legal rights remain protected.
Types of Power of Attorney
In Ontario, a power of attorney can be made for two specific reasons:
- Power of attorney for personal care;
- Power of attorney for property
Power of Attorney for Property
As per the Substitute Decisions Act, granting a power of attorney for property gives the attorney holder the right to make financial decisions for the grantor and safeguard their best interests.
Property decisions can be many including but not limited to managing the grantor’s investments and income consistently, making timely bill payments, doing their budgeting, etc. It can also include making decisions about the place of residence and the living expenses of the grantor.
Power of Attorney for Personal Care
In Ontario, the Substitute Decisions Act outlines the scope of duties and obligations of an attorney who holds an attorney for personal care. Personal care decisions can be made on matters including but not limited to food, clothing, shelter or personal hygiene.
There are certain restrictions on appointing an attorney for personal care. As per law, only certain persons can be appointed as power of attorneys for personal care including the partner, relative or grantor’s spouse. Persons who provide health care or social, training, support, residential services in exchange for compensation cannot be appointed.
Understanding When a Power of Attorney Comes into Effect
A power of attorney comes into effect in different circumstances. It may come into effect immediately upon its creation subsequent to drafting or it may become effective once a medical professional deems the grantor to lack mental capacity.
The timing of a power of attorney coming into effect depends on how it is drafted. A power of attorney may readily come into effect as soon as it is drafted. It is also possible for a power of attorney to come into effect after medical professional opines that the grantor lacks mental capacity. Mental capacity can be lost in many circumstances. It may be degenerative and gradually occur over a period of time for a senior who has dementia or Alzheimer’s disease. It can also be sudden if a person gets injured in an accident and loses mental capacity as a consequence.
Once a grantor is incapable of making decisions on their personal care and property matters, tests may be needed to confirm the incapacity. The testing process will require the support of an experienced Estate lawyer in addition to a knowledgeable gerontologist or capacity assessor.
Many times, a power of attorney does not take effect immediately. In fact, this is the prime reason that a power of attorney is known as a Continuing Power of Attorney in Ontario. It may have a clause making it effective once the grantor becomes incapable of managing their personal care and property matters.
The capable Estate Lawyers at Nanda & Associate Lawyers will help you interpret the Substitute Decisions Act. They will also support in explaining the role of the capacity assessor.
It is also essential to note that the power of attorney legislation is different in all Canadian provinces. If you own property in multiple provinces, often travel or live in a different province from the one in which the property is owned, a power of attorney will need to be drafted carefully.
How We Can Help
At Nanda & Associate Lawyers, our experienced Power of Attorney Lawyers understand your specific circumstances and provide you with cost-effective and customized estate planning solutions for each of them. We can support you to assume the responsibilities and duties of being granted a power of attorney or draft one as per provincial regulations to safeguard yours and your loved one’s interests.
Our Mississauga Wills and Estate Lawyers are available for a no-obligation free initial consultation. Come and experience our quality legal counsel and personalized care we give to each client. We ensure prompt communication and a professional approach to achieve successful outcomes for you.