Written by Robin Taub
Thursday, November 25th, 2021
Powers of Attorney (POAs) are legal documents that let you plan for a point in time when you're alive but need someone else to make decisions for yourself (e.g. when you are incapable). They allow you to appoint someone else to make decisions regarding your health and/or finances, in the event that you become mentally incapable of doing so or, depending on how POA is set up, when the POA is created.
In most provinces, two types of POAs are typically prepared alongside a will as part of a comprehensive estate plan—one to cover financial decisions and one to cover health care decisions.
If proof of lack of capacity is required before a POA could be used, you may need a letter from a physician attesting to a lack of capacity, along with a certified copy of the document.
According to Sandra Foster, author of You Can't Take It With You: Common-Sense Estate Planning for Canadians (6th ed), “mental incapacity is generally defined as occurring when a person is unable to understand information that is relevant to making a decision, or is unable to appreciate the reasonably foreseeable consequences of making or not making a decision."
If you need to go to the bank to add a POA to an account, appropriate documentation may be required.
Limits on Powers of Attorney
According to Sandra Foster: "The powers given to your attorney in your POA expire on your death and your estate executor takes over." Your attorney under POA typically can't update or write a will, or change your beneficiary designations depending on the provinces you are in.
A POA document may be very specific. For example, Foster says, “some documents are limited to a particular transaction, such as appointing someone to sign the papers to close the purchase of your new home while you are out of the country, or during a particular timeframe. Other Power of Attorney documents might give the attorney discretionary powers, such as the type signed for discretionary portfolio management services."
POA Laws Vary
According to Foster, “each province has legislation defining the default powers of a financial attorney, a list of their duties, the name of the document and name used for the decision-maker." While the laws regarding POA vary from province to province, “the authority you give your enduring Power of Attorney may be limited to activities stated in your provincial legislation, such as paying your debts, collecting your income, paying for expenses related to your support and care, and certain financial obligations. However, some people give their attorney broader powers," explains Foster.
When managing someone else's finances, the named attorney must act in the person's best interests. Furthermore, your POA for property may be entitled to compensation as prescribed by your province.
If you ever become incapable of making your own healthcare decisions, close family members (i.e. spouse, parents, adult children) may be permitted to make healthcare decisions on your behalf, even without a POA for personal care. But without these documents, your family may face an expensive and time-consuming court process to obtain permission to act on your behalf regarding your finances and/or personal care.
When Do You Write Your POAs?
When you draft your will with a lawyer, they'll assess your competence and generally ask if you also want to prepare your Powers of Attorney documents. Since you've already itemized your assets and listed family members for your will, it's generally less expensive to prepare your POA documents at the same time.
Risk of Fraud
Even though presenting a POA for property should be sufficient for the person(s) you designated as your attorney to manage your finances on your behalf, your attorney shouldn't be surprised if the procedures for accepting the POA vary from one financial institution to another. Because of the risk of fraud, each financial institution is trying to control their own risk and protect their clients' assets, and may have slightly different procedures.