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If you don’t have them, they are often more important than a will. Without powers of attorney, if you are suddenly so seriously ill or injured that you cannot communicate clearly and you cannot handle your own affairs, your spouse, partner or family members will be forced to hire a lawyer to obtain the necessary legal authority to act on your behalf. It is a very expensive, time-consuming and frustrating procedure.

In Canada the word “attorney” simply refers to someone you have appointed in writing to do certain things for you, under a Power of Attorney. The person is your attorney and can say, I am Jane Smith’s attorney, or I am acting under a power of attorney given by Jane Smith. Every province and every state has different laws and rules respecting wills and powers of attorney.

Power of Attorney for Personal Care

In Ontario, a document called a Living Will is not enforceable, unless it is properly prepared as a legally enforceable Power of Attorney for Personal Care. This document allows you to name the person or the people who can make personal care and medical decisions on your behalf if you become incapable of doing so. You can be very specific, or very vague, in the document, depending on your preferences and your perception of your future needs or concerns. Anyone who is over the age of 16 and is mentally competent at the time they sign the Power of Attorney for Personal Care can create an enforceable document.

Continuing Power of Attorney for Property

In Ontario, anyone over the age of 18 can give authority to others to handle our financial affairs and deal with property and assets with a document called a Continuing Power of Attorney for Property. The older version of this legal document, called a General Power of Attorney, can still be valid if it was properly created when it was signed.

What we can do in a Property Power

In a Continuing Power of Attorney for Property, we can authorized the hiring of professional assistance. We can authorize the giving of consent to a spouse’s possible future transfer of title or sale of the home we are living in. We can authorize the making of gifts or loans to family members if we have a regular habit now of doing this that we want continued if we are too ill to do it ourselves, for example the sending of birthday and holiday cards and the giving of small (or large) sums with them. We can also limit the Power to specific items. We can give different Powers dealing with different assets to different people – for example the running of a business or the sale or purchase of specific real estate.

What the Property Attorney can do

The attorney for property will ensure all your bills are paid, complete any real estate transactions or other matters you are involved in, supervise the preparation of tax returns and sign them on your behalf, and make sure that your finances are managed in the best possible way to ensure that you can be cared for until you die.

What the Property Attorney must do

The attorney for property is obliged to keep you informed of what he or she is doing; if you are still competent yourself to make decisions, the attorney for property must follow your instructions with respect to your assets and finances. If you are no longer competent (and the attorney for property cannot make that decision by himself or herself), then the attorney for property must make the decisions for you as he or she thinks would be best for you.

The attorney’s responsibility is to you, and not to your beneficiaries under your will.

A right to read your will

However, your attorney for property does have the right and the responsibility to review your will to make sure that your wishes as set out in your will are respected as much as possible. For example, if you have specifically left something to someone, your attorney for property is expected to try to avoid selling that asset if a sale can reasonably be avoided. If your attorney for property needed to distribute or dispose of some of your furniture and belongings from your home because you were moving into a retirement residence or a long-term care home, your attorney would be expected to follow any list you had included with your will, and to deliver the items listed there to the person or people you listed, if those items were not going to move with you to your new home.

An Attorney for Property cannot write a Will for you

An attorney for property cannot change your existing will or create one for you if you don’t have one. An attorney for property also is not supposed to make “testamentary dispositions” for you, in other words, do things that have the effect of giving an asset you own to someone after you die. For example, using a property power of attorney to change the ownership of real property to you with someone else as a joint tenant with right of survivorship, will take that real property out of your will and will allow that person, in most circumstances, to become the sole owner of that real property after your death. This applies also to other assets such as designations on life insurance policies, designations on Registered Retirement Income Funds, designated beneficiaries of some guaranteed investment certificates, and bank accounts where ownership is changed to joint ownership between you and someone else.