CONTINUING POWER OF ATTORNEY FOR PROPERTY
A Continuing Power of Attorney for Property is a document that you utilize to give someone else the authority to act and make decisions for you. The Continuing Power of Attorney for Property authorizes someone else to take care of the “business” of your life, if you are no longer able to do it yourself. What I mean by the “business” of your life is the day-to-day process of looking after your affairs. Your inability to do it yourself can arise as the result of a future incapacity on your part, arising because of an accident, illness, or just plain old age and infirmity.
A Continuing Power of Attorney for Property enables you to exert a measure of control over your financial affairs even if you are no longer mentally or physically capable of making decisions relative to your financial affairs.
A Continuing Power of Attorney for Property can specify when it becomes effective. It can state that it is in full force and effect the moment it is signed, or it can state that it is triggered to become effective at a later date or in the event something happens. For example, it can state that it becomes effective the moment your family physician declares you to be mentally incompetent.
The idea is that if you become incapable, for example if you contracted Alzheimers Disease, someone that you trust is able to do all the things that you would do if you could do them yourself. In other words, whether you are sick or not, someone has to pay the utilities bills, file your tax returns, renew your mortgage, etc.. This is what the Property Power of Attorney lets you do.
A lot of people are under the false impression that their spouse automatically has the right and authority to speak for you if you are incapacitated. This is simply not true. If you do not have a proper Power of Attorney, no one has authority to speak for you unless and until the government says so. Under Ontario’s Substitute Decisions Act, 1992, your spouse does not have an automatic right to act as your Trustee or Attorney. If you do not have a proper Power of Attorney at the time of your incapacity, your family will have to apply to the Courts for an appointment to be made the legal guardian of your estate. If your family does not apply, or cannot agree on who should act as your Attorney, then the government will take on the task, and charge fees to your estate accordingly.
Of course, the government is not actually out there trying to take over the affairs of its citizens, and the spouse will get the appointment so long as there is no challenge from some other family member. However, the whole process is unnecessary and costly, both in time and money. It can easily be avoided just by having a proper Continuing Power of Attorney for Property prepared.
When I say a “proper” Power of Attorney, I am talking about one that is properly prepared and complies with the law. It is of course possible to write one up yourself or download one off of the internet, or buy a cheap program at the bookstore. However, these might not be proper. You must remember that fraud by Power of Attorney is a large and ever increasing problem. Think about it: what could be a better licence to steal? Forget all the problems you hear about with identity fraud and people charging televisions to your credit card. What about someone that makes an appointment at your bank, provides the clerk with a document purporting to be a Continuing Power of Attorney for Property, with what appears to be your signature on it, and they cash out all your GICs?
The benefits of having a lawyer prepare your Powers of Attorney are that the document meets certain minimum statutory requirements, the identity of everyone involved is verified, it is properly sworn, usually with an Affidavit of Execution, and it is independently witnessed. The lawyer acts as the independant certifier that you were of sound mind when you executed the Power of Attorney. Just like a will, the document is of no effect if your mental capacity at the time of signing is open to question.
The lawyer also ensures that proper people act as witnesses. There are two witnesses required when you sign the Continuing Power of Attorney for Property, and those witnesses cannot be the named Attorney or their spouse, and they cannot be your spouse or your children. Simply put, people close to you and/or your Attorney cannot act as witnesses to the appointment, since that could give rise to a challenge to the validity of the appointment. The idea is that the witnesses can verify that when you signed the Continuing Power of Attorney for Property, you did so of your own free will and without pressure or duress from anyone with anything potentially to gain.
The most important thing is that a person that you trust is put into this position of authority. It should be someone that you know well and, hopefully, is knowledgeable about financial matters.
You can appoint more than one Attorney. However, if you do so, remember that they will all have to agree on every decision they make, unless you specifically state otherwise. If you want various Attorneys to be able to act independently, for example if your three children are all named Attorneys, but you do not want decisions delayed because one of them lives out of town or two of them cannot agree, then you would specify that they are appointed “jointly and severally”. This means that they can work together or independently.
Please note that the Substitute Decisions Act, 1992, S.O. 1990, c.30 entitles your named Attorney to claim compensation from your estate in accordance with a fee scale set out in the legislation. You are entitled to stipulate in your appointment that there be an increase or decrease to the rate of compensation or a declaration that there is to be no compensation, as you choose.
NOTE: This information is not intended to contain advice specific to your situation or affairs. The views and comments expressed herein are my own opinions and observations and do not necessarily reflect the opinions or views of the other lawyers or staff of the law offices of Laing & Parent LLP. Estate planning strategies vary from person to person and your specific situation is unique. Your situation should be reviewed by your lawyer, your financial adviser and your tax accountants, preferably in conjunction with each other. If you would like to review your individual situation directly with me, please feel free to contact me through this site or at firstname.lastname@example.org. I am happy to work with your financial advisors and tax accountants to come up with a plan specific to you, but you should not rely on the general information contained in this article as though it is legal advice.