The Importance Of A Power Of Attorney
My mother was in excruciating pain when I took her to the hospital. The nurse came in with some forms and asked if she wanted to sign a DNR – do not resuscitate – if her heart stopped. Apparently this is standard procedure because of her age. Moaning, my mom said, “Just let me die.” I said, “You can’t make her sign that in the condition she’s in.” I was told, “It’s not your call to make.”
You see, she did have a Power of Attorney for Personal Care. It was my brother, 1,400 kilometres away.
Fortunately, she came through her treatments ok, and now, several years later, she’s in pretty good health “for her age.”
It’s not pleasant to think that there could be a time when you’re unable to make certain crucial decisions for yourself. To prepare for this possibility, it’s a good idea to draw up Power of Attorney agreements granting another person, usually a family member or trusted friend, the legal authority to make decisions and act on your behalf.
Related: The pitfalls of naming your children co-executors
An Enduring Power of Attorney names someone to take care of your financial affairs should you become mentally incapacitated.
A Personal Care – or Medical Directive not only names someone to make your medical decisions for you, it can also outline end-of-life wishes if you can’t make those decisions yourself.
Estate law is provincially regulated and rules and terminology differ.
Power of Attorney
Many people complete a Power of Attorney form at their financial institution, but this only authorizes a person to manage accounts held there. It’s better to prepare an enduring Power of Attorney for Property. POA’s can be broad or very specific. These are your options:
- Immediate – Your attorney can have control over your assets immediately and you can both write cheques, sign documents, etc. This power ends at death or mental incapacity.
- Specific – This is used only for specified transactions (e.g. sale of home), or a limited time period (e.g. while you are out of the country).
- Continuous – Your named attorney can act and make decisions both before and after mental incapacity.
- Springing – The power to act only comes after mental incapacity.
Medical Directive
A Power of Attorney for Personal Care, or Medical Directive is like a living will that allows you to name someone to make health care decisions for you if you can’t make them yourself due illness or injury. It comes into effect after a capacity assessment. This determines whether or not you have the ability to make your own decisions.
However, just because someone disagrees with a decision you make (for example, you might decide you no longer want to take a certain medication or treatment), it doesn’t mean you have lost the ability to make the decision, as long as you fully understand the impact of that decision.
What happens if you don’t have a Medical Directive
Each province has a list of contact people who would be individually asked to be your Temporary Substitute Decision Maker.
One person is chosen from the list, usually in this order:
- Spouse (married, common-law)
- Child (age varies by province, e.g. 16 in Ontario, 19 in BC)
- Parent
- Sibling
- Grandparent
- Grandchild
- Other relative
Some provinces allow others, such as a care giver or close friend, but other provinces are more restrictive.
If you don’t like the order, or you have many adult children, or you would rather have your friend rather than your brother, for example, to be asked to make health care decisions for you, you can choose a person by naming him or her as your representative. This becomes a legally binding agreement.
Final thoughts
All adults should do advanced care planning to make their wishes and decisions known for their future health care treatment. Choose someone you trust and make sure this person is willing to take on this responsibility.
Related: So you’ve been asked to be an executor
It’s a good way to make sure your wishes will be respected and helps your decision maker to make difficult choices because they know they are following your wishes. You don’t want arguments at your bedside.
Good information! What if a person was selected and later you no longer wish to use that person, can this be changed? Also, for the process to be legal does it matter if a paper was signed and witnessed by two people or does it have to be in front of a notary or lawyer? Finally, how important is having a will? I mean can the power of attory person act on my behalf if I just tell them my wishes?
Thanks!
Hi Gert. You can for sure change the person you selected at any time. Some provinces don’t require a lawyer or notary just written instructions. In BC you can give instructions to your health care provider. Just do a search for Power of Attorney for your province and you’ll get a government website that will give you more information that you could want.
A Power of Attorney in most cases is cancelled after death so it can’t replace a will. Everyone should have a will. If you don’t have a lot of assets and/or what you want to do is pretty straightforward, you can just use an inexpensive will kit.
Powers of Attorney are used when a person is still alive but can not act for themselves. If you are incapacitated (mentally or physically) and do not have the two different types of Powers of Attorney the government will decide what to do with your financial matters and your personal property, also your health matters. So, do not let the government decide these things for you, go to a lawyer and get these very important papers drawn up. Go online and research “What will happen if I become incapacitated and do not have Powers of Attorney?” Each province may be different. After you are dead your powers of attorney are null and void and your will takes over.
A will is for when that person is dead. If you die and do not have a will the government will decide what to do with your estate. It will look at if you have a spouse, children, etc. and use a legal formula to decide who gets how much. So do not let the government decide who gets your money and personal property after you are dead – go to a lawyer now and get your will done. Go on line and research “What will happen if I die in the province of ” ” without a will?’ Each province may be different.
My mother passed away at age 90, however she had her will written a couple of times over her life. Her last one was when she was about 65. She sat me down and said this is what is going to happen. I was her executor. She had everything arranged so that I had to do very little thinking and just did what she had already told me to do. I had done separate reading on my own to prepare myself as well. I was lucky that when she had her first stroke, she had her Powers of Attorney written and in place already. I was able to do all her financial management for her and make medical decisions for her in the hospital as well as to where she would go after the hospital, etc.
My husband and I are 58 and we just redid our wills and POAs, as when we last did them we only had one child and he was one year old. Now our children are 24 and 22. It was long overdue but we are happy that everything is ready in case something happens to one or both of us. People are in car accidents, have strokes, heart attacks, etc. at any age. BE prepared! It will make no difference to you as you will be dead, however the people you leave behind will be happy you did the work. They will be mourning your loss, don’t let them suffer more by dealing with the legal troubles you leave them too by not having a will.
There are many stories of spouses not being able to access bank accounts, deal with mortgages, etc., because their husband/wife became incapacitated and did not have POAs in place. Don’t let that happen to you and your family.
I know your original article was only for POAs but some people do not know the difference between them and Wills so I provided a little more info on both.
We had a little more needed in our wills but if people only need a simple will they can be written at some Walmart stores that have legal offices in them. Check it out and look at their prices which are listed at the front of the store. Only some Walmarts have these legal offices, so you will have to go online to search. You can get both your will and your POAs done for reasonable prices.
Heck, people very seldom have a will, let alone a living will for Medical Directives. This stuff isn’t fun to think about, but it’s important if you want to ensure your wishes are carried out. Why be in pain and then feel like you have no control to boot?
Great post, the Personal Care- Medical Directive is formally called a Representation Agreement (here in BC anyway).
There are Representation Agreement 7 and 9 forms that authorize an alternate person DIFFERENT from the Temporary Substitute Decision Maker list to make your health care decisions.
NIDUS is a great resource about these forms and where to get them, and which one to get notarized.
http://www.nidus.ca/