All About Powers Of Attorney

By: Barrie M. Hayes, Litigation & Dispute Resolution, Family Law

Imagine you have suffered a stroke which has resulted in brain injury or you have sustained a trauma to the head which has resulted in your being in a coma. How will you manage your bank accounts, pay your bills or make arrangements for your physical needs?

It is situations like the above that the recent legislation dealing with continuing power of attorney for property and the power of attorney for personal care has addressed.

In the new power of attorneys, the situations where a person becomes incapable of managing his or her affairs, three legal procedures can be resorted to in addressing the needs of the incapable person.

1. If the person had, prior to his or her incapacity, created a continuing power of attorney for property and power of attorney for personal care, the power of attorney appointed would have legal authority to see to the property and physical needs of the incapable person.
2. In the event that the person becomes incapable of managing his or her affairs and has not executed these powers of attorney, a third party (in most cases a spouse or relative) can apply under the legislation to be appointed a statutory guardian of the incapable person.
3. In the event that no one is prepared to assume the responsibility to act as the statutory guardian for the incapable person, the legislation provides that the office of the public guardian and trustee will assume legal responsibility for the needs of the incapable person.

There are two forms of power attorney.

POWER OF ATTORNEY OF PROPERTY

A person executing a continuing power of attorney for property authorizes that the person designated have the complete legal authority to manage the subject person’s financial affairs (i.e. Operate bank accounts, sell property, incur debt). The continuing power of attorney for property can, however, be limited in its legal scope (providing authority only for the operation of the person’s bank accounts).

The continuing power of attorney for property can be activated in two ways.

1. At the direction of the power of attorney provider (i.e. If the power of attorney provider is out of the country), the power of attorney can be used to operate the person’s bank accounts while he or she is gone. Upon the return of the person, the power of attorney can be revoked.
2. In the event that the power of attorney provider becomes incapable of managing his or her affairs, the continuing power of attorney for property automatically becomes activated for so long as the power of attorney provider is incapable of managing his or her affairs.

POWER OF ATTORNEY FOR PERSONAL CARE

The power of attorney for personal care provides the person designated with the legal authority to make personal care decisions for the incapable person should the subject person become incapable. (i.e. Health care, housing, clothing, hygiene, personal safety). The power of attorney for personal care provides the personal care attorney with the authority to give or refuse consent to medical treatment on the incapable person’s behalf.

Unlike continuing powers of attorney for property, powers of attorney for personal care can only be activated in the event of the power of attorney provider’s incapacity. Like continuing powers of attorney for property, a power of attorney for personal care can be limited in the scope of the personal care arrangements the power of attorney addresses. The power of attorney for personal care can be general and unlimited or can contain very specific directions by the subject person as to what physical care arrangements he or she wishes to receive.

In many situations the continuing power of attorney for property and the power of attorney for personal care are one and the same persons. In many cases, spouses designate each other as their respective powers of attorney. It is wise, however, to designate an alternate power of attorney in the event the primary power of attorney designated is either unwilling or incapable of acting as power of attorney.

Powers of attorney for both continuing property and personal care are required to execute their responsibilities in good faith with diligence and keeping the best interests of the incapable person in mind.

Powers of attorney are the best mechanism to address situations of incapacity because the person in question can pre­arrange the nature and extent of the person’s property and personal care arrangements as they see fit. The powers of attorney are also inexpensive to prepare.

A statutory guardian appointment is expensive in legal costs because the person applying for such legal status has to propose a plan of care for the incapable person, file supporting affidavits and file annual accounts and reviews of the care plan for the incapable person. In this type of procedure, the incapable person has no say in the plan of care to be arranged on his or her behalf.

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The above is not intended to constitute legal advice. Please contact a lawyer to clarify your legal rights.