Understanding why you need a Power of Attorney

A Power of Attorney is a legal document in which you give someone you trust (called your “attorney”) the right to make decisions for you if you are not able to do so on your own. Broadly speaking, there are two types of POAs – non-continuing (general) and continuing (enduring). There is one type of non-continuing (general) Power of Attorney and two types of continuing (enduring) Powers of Attorney.

  1. A Non-Continuing Power of Attorney for Property covers your financial affairs. This type of POA can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.
  2. A Continuing Power of Attorney for Property (CPOA) allows the appointed person to make decisions for you regarding your financial affairs, even if you become mentally incapable.
  3. A Continuing Power of Attorney for Personal Care (POAPC) allows the appointed person to make personal care decisions for you, such as housing and health care. The POAPC continues even if you become incapacitated. This would include decisions concerning performing any lifesaving or extraordinary measures to keep you alive.

Who needs a Power of Attorney?

Everyone should have a Power of Attorney in place, yet over 50 per cent of Canadians don’t have one. Without a Power of Attorney, you are in the vulnerable position of having no control over your property and most importantly, your medical decisions, should you become incapacitated.

Who will make decisions for me if I don’t have a Power of Attorney in place?

If you become incapacitated and don’t have a Power of Attorney in place, provincial legislation will kick in and someone will be appointed to make decisions for you. A spouse or partner is typically the first person appointed. This can pose a number of issues. For example, what if you are estranged from your spouse but not legally divorced? Or what if you and your partner have differing viewpoints on end-of-life care or lifesaving measures? In both cases, decisions may be made for you that are not in keeping with your wishes.

Who can act as a Power of Attorney?

You can choose a spouse, partner, close friend or adult child to be your Power of Attorney. You may also choose to have one Power of Attorney for your property and one for your personal care. Here are a few important considerations to keep in mind before making the appointment:

Power of Attorney for Property:
  • Select someone you trust to make critical decisions surrounding your finances, investments and legal obligations, in order to benefit you and your family.
Power of Attorney for Personal Care:
  • Making end-of-life decisions for you is a burden your Power of Attorney will need to carry with them for the rest of their life. As such, before appointing someone as your Power of Attorney, you will need to discuss your wishes to ensure they are comfortable complying with those decisions.
  • Choose someone who will respect your decision and will be able to stay strong to fulfill your wishes, even if other family members do not agree with the course of action you have requested.

When is it too late to put a Power of Attorney in place?

No matter how sick you are, as long as you still have the mental capacity, you can execute a Power of Attorney. Ontario (along with most other provincial governments) has an online Power of Attorney kit. While these documents are not perfect, they are a good temporary measure to put in place.

How has COVID-19 impacted the ability to execute a Power of Attorney?

On April 9, 2020, the Ontario government put into place emergency legislation to allow for virtual witnessing of documents for those who are in social isolation (meaning you are in quarantine due to illness). Using ZOOM or FaceTime, you can meet with your selected Power of Attorney to sign the documentation. The document must be signed by two witnesses - one must be a lawyer or licensed paralegal and the other could be a medical worker or hospital staff member. Neither witness can be named in the POA document.

For those who are not ill but are practicing social distancing, you are able to sign documentation in real time provided that you are in a room large enough to allow for two meters of distance between signing parties. The parties should wear masks, gloves and bring their own pen. While statistics are positive that the majority of people who contract COVID-19 will recover, in some cases the disease progresses rapidly, so it’s important to ensure you have a Power of Attorney in place to ensure your wishes are carried out.

In Summary:

  1. Make a conscious decision of who you want to carry out your wishes. Your Power of Attorney should be someone who will respect your wishes and can live with implementing your decisions.
  2. If you don’t have a Power of Attorney, take temporary measures. Use this online form until you can get more complete documents in place through a lawyer.
  3. If you are self-isolating or in the hospital and have capacity to execute documents, virtual witnessing is possible with one lawyer licensed in the province / qualifying paralegal, and one other person not named in the document (medical caregiver / hospital worker, etc.).
  4. For those who are not ill, in order to practice social distancing, find a space large enough for you and two unrelated witnesses and sign in real-time, ensuring you keep a two meter distance.

Putting a legal Power of Attorney in place allows you and your loved ones the security of knowing your end-of-life wishes will be carried out.

This document is solely for informational purposes. Statistics, factual data and other information are from sources Raymond James Ltd. (RJL) believes to be reliable but their accuracy cannot be guaranteed and is subject to change. RJL, its employees and financial advisors are not estate or tax planners and do not provide legal or tax advice. The comments and information contained in this document cannot be relied upon to replace specific legal or tax advice. Individuals should always consult their own lawyer and/or qualified tax professional regarding their specific situation. Raymond James Ltd., member – Canadian Investor Protection Fund.