What is a Power of Attorney and Why Have One?
It’s never too late to start thinking about your future and who you would want by your side taking care of your property and health, when you are incapable of doing so. Many more young Canadians are taking the steps to sign a POA while capable. The Substitute Decisions Act, 1992 is the statutory framework that governs over the powers of attorney with respect to property and personal care.
Why have a power of attorney? By signing a POA while capable, the grantor is able to have their own choice as to an attorney to act on their behalf in the event of incapacity or where the grantor, while capable is simply unavailable. The attorney appointed must act with reasonable care, as a fiduciary, and must not act in conflict with the grantor’s interests.
There are two types of POA’s one for property and one for personal care.
For a continuing power of attorney for property, subsection 7(2) of the SDA, provides that a grantor may authorize the attorney to do anything in respect of property that the grantor, if capable, could do, except make a will for the grantor. The grantor may, choose to limit the scope of the authority of the attorney by express provisions in the POA documents.
Powers of attorney require execution by the grantor in the presence of two witnesses, each of who must sign the document as witnesses. Certain persons are disqualified as witnesses, for example, the spouse of the grantor or attorney, a child of the grantor and a person under the age of 18.
In order to appoint an attorney for property, the grantor must be at least 18 years of age when the document is signed. The attorney has the capacity to act with respect to property if he or she is at least 18 years old (SDA, s.5). Section 8 of the SDA, further sets outs a set of sufficient conditions for a grantor to be capable of giving a continuing power of attorney. For example, the grantor is capable of giving a continuing power of attorney if he or she, knows what kind of property he or she has and its approximate value. Further conditions listed confirms that the grantor knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, and also appreciates the risk that the attorney could misuse the authority given to him or her. However, so long as the grantor retains capacity, he or she can revoke the appointment of an attorney at any time and appoint a new attorney to act.
Termination of a continuing power of attorney is terminated on the occurrence of the attorney dies or becomes incapable, a court appoints a guardian of the grantor’s property, and the grantor dies or a new continuing power of attorney is signed.
The second type of power of attorney is for personal care. The term “personal care” encompasses health care, nutrition, shelter, clothing, hygiene and safety. The Health Care Consent Act, 1996 (HCCA) must be considered when dealing with a POA for personal care. The statute sets out the hierarchy of substitute decision makers who can give or withhold consent to a “treatment”. The person appointed as an attorney under a power of attorney for personal care, will subject to any conditions or restrictions contained in the document, place the attorney ahead of all of the grantor’s relatives for purposed of giving or withholding consent to a treatment.
In terms of capacity, the general view is that the grantor of a power of attorney for personal care be at least 16 years old when the document is signed. The attorney must also be at least 16 years old. Certain individuals are prohibited from acting under a power of attorney for personal care. For example, unless the individual is the spouse, partner or relative of the grantor, the individual may not act as attorney for personal care if he or she provides health care to the grantor for compensation or provides residential, social, training or support services to the grantor for compensation (SDA, s.46 (3)).
Call Kesarwani Law Office today and let us advise on and draft your powers of attorney documents. We service across the GTA, including Mississauga, Brampton, Vaughan, and Oakville.
Contact Jasdeep Dhillon at 647-349-8300 or at firstname.lastname@example.org
Please do not construe this as legal advice and contact a lawyer before making arrangements for a power of attorney matter