Power of Attorney Document

15923 Views 10 Replies 7 Participants Last post by 83gemini, Sep 15, 2009

Doris

Discussion Starter · Sep 11, 2009

My mother (a widow) has a will and personal directive giving instruction of what should be done if she is gravely and terminally ill. She now wants me (oldest daughter) to have immediate power of attorney over all of her affairs. I am the executrix of her will.

I am wondering if there is a simple (free) form on line we can use - or can I create one myself. I have seen these documents from the US, and have seen examples of Canadian PA's and they don't look too complicated.

As she already has a will and personal directive I don't think we need to see a lawyer for this.

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stardancer

· #2 · Sep 11, 2009

Google 'power of attorney' and check Canadian sites. Pick out one for your province. The Ontario government has a fairly simple one.

For a complete PoA, you need power over financial affairs and one over personal care. I would do both to cover yourself. The personal directive can help direct the medical people, but they will also want someone to make decisions before that stage is met. She may have a stroke and be handicapped, alive, but unable to make decisions. That's where the PoA steps in.

A lawyer would combine the two areas into one document. The ones I have seen (and used in the past) from the Ontario gov't come in two sections. Both sections have to be signed and witnessed by two impartial non-related parties.

Hope this helps.

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OhGreatGuru

· #3 · Sep 12, 2009 (Edited)

Attorney General of Ontario has a booklet and forms available in PDF format at www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.pdf

Having a "personal directive" in her will is not the same as appointing a power of attorney for personal care, and the former is not likely to be much practical use when the need arises. You should obtain a guide from your province and discuss with your mother the benefit of appointing such an attorney. If she wishes to have "DNR" (Do Not Resuscitate), or similar provisions, she should amend the standard appointment form to say so, so that there is no doubt as to her wishes. (ie. her current "personal directive" can be included as a paragraph in the appointment form.)

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Maltese

· #4 · Sep 12, 2009

Whether or not there are power of attorneys for both property and personal care will depend on where you live. In some provinces a power of attorney can only cover property. Another thing to research is which type of power of attorney would best suit your mother's situation. There are many types each with its own unique purpose.

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OhGreatGuru

· #5 · Sep 12, 2009

I stand corrected. Some provinces (such as Alberta) use the term "Personal Directive" as an equivalent to Ontario's "Power of Attorney for Personal Care". There are likely other variations. Best to check with your provincial attroney general's office.

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83gemini

· #6 · Sep 13, 2009

I'm not licensed yet, I can't give legal advice, and I doubt I will become an estates specialist (though I like the stuff, I must admit). Nonetheless I'll say this:

Even if you don't care about your beneficiarites and prepare your estate without professional advice, have your POA prepared by a lawyer. At least if the will is botched you are dead. If the POA is botched not only is the process for having the appropriate guardians and the like appointed laborious and unpleasant, you are also alive through the process.

This is pretty much an exact quote from the current Children's Lawyer of Ontario.

And if you think paying a few hundred bucks for an estate solicitor is expensive, estate litigation is more expensive and far less pleasant then planning such things (hard to believe I know).

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Elbyron

· #7 · Sep 14, 2009

Doris, you can download a free Will kit, including the PoA document, from http://www.truehelpfinancial.com/members/will/
Obviously, any lawyer is going to tell you to pay hundreds of dollars to have them fill in the blanks for you, but you should do some research and form your own opinion. Personally, I've found that it's very unlikely that you could "botch" your Will or PoA, though you might leave out something important or be too vauge about something and cause problems down the road. I believe that as long as you're keeping it simple and straightforward, and you very clearly state your intentions, then there's no reason to shell out for a lawyer. Especially if your family gets along really well, there isn't much chance of anyone trying to challenge the validity of the documents. Again, this is just my personal opinion and you should do your own research and decide for yourself.

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Doris

Discussion Starter · #8 · Sep 14, 2009

Thank you everyone for the advice.

I have done some research further to your comments and I think I know how to proceed.

I did look at the free Will kit but the documents are not actually free because you are forced to meet a financial advisor before you can get the "free" POA document. I do not want financial advice right now and so will not use that service, but thanks anyway for that tip.

I think our P of A will be quite straightforward but I am now wondering if it has to be signed by a commissioner of oaths or notary, or will either one do. Some sites say one and some say the other. Does it matter which one we use?

Thank again!

D

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canehdianman

· #9 · Sep 15, 2009

Hi Doris,

The answers to your questions will depend on what Province you live in.

Without that information, we are all just guessing (and likely giving you incorrect information).

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Doris

Discussion Starter · #10 · Sep 15, 2009

We live in Alberta. Sorry I forgot to mention this earlier.

D

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83gemini

· #11 · Sep 15, 2009

Copying from the Alberta Justice site (i.e. this is not legal advice):

The only requirement for execution of a POA and a Personal Directive in Alberta appears to be that the document is properly witnessed (i.e. does not need to be commissioned or notarized).

On Enduring POAs

Alberta Justice: Enduring POA

An Enduring Power of Attorney allows you to prepare for a time when you may become ill or suffer a disability and, as a result, become unable to manage your own financial and legal affairs. An Enduring Power of Attorney also allows you to appoint an attorney to manage certain (or all) of your financial affairs now and will continue even if you become mentally incapacitated.

The site also notes:

To give someone the authority to look after your personal and medical matters you will need a different document called a Personal Directive.
If you need help looking after personal and healthcare matters and you don’t have a Personal Directive, then someone will need to go to Court to obtain a Guardianship Order and be appointed your guardian.

An Enduring Power of Attorney must:

Be made in writing and dated
Be signed by the donor in the presence of a witness
Be signed by the witness in the presence of the donor
State that it is to continue notwithstanding any mental incapacity or infirmity of the donor that occurs after the execution of the Power of Attorney, or that it is to take effect on the mental incapacity or infirmity of the donor

Enduring Powers of Attorney take effect:

immediately, or
when the donor becomes mentally incapacitated, or
when some other event specified by the donor occurs

On Personal Directives

Personal Directives

The government publication "Understanding Personal Directives" (available via the link) notes:

If you do not have a personal directive
and you lose the ability to make decisions,
a family member or friend can apply to
the Court to become your legal guardian.
However, the application process can be
lengthy and expensive, leaving you with no
one to make decisions on your behalf until
a Court Order is granted.
If a family member or friend is not willing
or able to be your guardian, the Office of the
Public Guardian can, as a last resort, apply to
the Court to be your guardian.

It also notes:

To be considered a legal document, the
requirements are that your personal directive
must be:
• in writing (by hand, typed or by computer);
• dated;
• signed by you (in the presence of a witness).
If you are physically unable to sign the
directive, another person must sign on your
behalf in the presence of a witness; and
• signed by a witness (in your presence).
The following persons may not witness
the signing of a personal directive:
• any person you have selected to
make decisions on your behalf –
called your “agent”;
• the spouse or adult interdependent
partner of your agent;
• your spouse or adult interdependent
partner; and
• the person who signs the directive on your
behalf, if you are physically unable, or their
spouse or adult interdependent partner.
Although it is not a legal requirement to do
so, it is a very good idea to give a copy of
the directive to your agent, physician and to
other service providers with whom you are
involved (e.g., the director of the nursing
home where you live).

Such witnessing requirements are not mentioned for an Enduring Power of Attorney; I have not read the governing legislation so there may not be any. But it is safer to look into the sources yourself and double check. See:

Alberta Queen's Printer

As for assistance. With respect to Personal Directives, the publication noted above says:

Do I need a lawyer?
It is not necessary to use a lawyer to write a
personal directive. However, you may wish to
consult a lawyer, your family physician, pastor
or any other person who you feel would help
you make your instructions clear.
If you have questions as you prepare to write
your personal directive, please call the Office
of the Public Guardian at 1-877-427-4525.

As for Enduring Power of Attorney the "Understanding Enduring Power of Attorney" publication (available through the relevant link above) says:

Things To Consider
You may want to hire a lawyer to help
While it is not necessary to hire a lawyer to prepare the Enduring Power of Attorney, it is recommended. A lawyer can guide you through the process, explain your options and ensure that it is properly drafted. For example, you may have concerns about limiting the authority your attorney has, or want your Enduring Power of Attorney to only take effect upon mental incapacity.

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