When you appoint an attorney there are a number of choices that must be made about the kinds of decisions the attorney will be able to make and when the attorney can act for you. It is important to consider the options and have a power of attorney document that suits your needs.
You can always also continue to act for yourself as long as you have capacity.
There may be times when you need someone else to deal with your finances even though you can still handle them yourself. You might want someone to be in charge of something like the sale of your house. Or you might want someone to deal with all your finances while you are injured or out of the country. A non-enduring power of attorney (POA) can be used for these purposes.
This type of POA ends if you can no longer understand what it means to give someone a POA. It also ends if you are no longer capable of making your own decisions.
An enduring POA must clearly state that you want your attorney to be able to act for when you are no longer capable of making your own decisions. This is the only type of POA that can be used for this purpose.
By creating an enduring POA you can choose who you want to make decisions for you when you cannot make them yourself. Without an enduring POA, your next-of-kin or other interested party would need to make a court application for adult guardianship to be able to act for you.
If you do not state otherwise your POA will come into effect as soon as it is finalized. If you want your POA to come into effect only at a later date you can create a contingent enduring power of attorney. With this type of POA you can choose when it will come into effect. For example, you could have it come into effect only when you can no longer make your own decisions. You can give someone the authority to decide whether you are still able to make your own decisions. You cannot give this authority to the person you appointed as an attorney or to a member of their family.
If you did not give anyone the authority to decide if you can still make your own decisions then this must be decided by two professionals. The professional groups that are allowed to make this decision include medical practitioners, R.N’s, psychologists, occupational therapists, social workers and others.
A property attorney is the only kind of authority you can grant with a non-enduring power of attorney.
You can grant a power of attorney over your property and financial affairs. This could include the ability to withdraw money from bank accounts, pay bills and sell or purchase property. A property attorney cannot make a will for you or change your existing will.
A property attorney appointed under an enduring power of attorney can use your funds to support your spouse and/or dependent children. They can also use your funds to pay for the education of your spouse and/or dependent children. If you do not want them to be able to do this you can state this in the POA document.
You can give a property attorney appointed under an enduring power of attorney the authority to make gifts. If you don’t give this authority they can still make gifts but there are restrictions. In this case the total value of all gifts in any year cannot exceed $1000. In this case gifts can also only be made if you can afford it and it is something you would normally do.
If you choose to make an enduring power of attorney your attorney will be your property and personal attorney unless you state otherwise. A personal attorney can make decisions about your personal affairs. This could include deciding where you should live and what kind of help you need around the home. A personal attorney cannot be given the power to make health care decisions for you. This must be done by making a health care directive. See Health Care Directives for more information.
Remember, unless you state otherwise, an attorney under an enduring power of attorney is both a personal and a property attorney.
If you appoint both a property and a personal attorney, you can choose to appoint the same person as both or appoint two different people.
If you have a property attorney and a personal attorney there are rules about what happens when they disagree about a decision. The property attorney will have the final say if the POA does not state who should make the decision and the decision involves spending money. If the personal power of attorney disagrees with the decision of the property attorney either party can ask the court for direction.
You can choose to give an attorney general authority or specific authority. If you give a property attorney general authority they can make all decisions about your finances. If you give a personal attorney general authority they can make all decisions about your personal affairs.
If you only want your attorney to make certain decisions you can say this in the power of attorney document. For example, a property attorney may be given the power to pay certain bills from a chequing account or you may give a personal attorney authority to decide on a place of residence for you.
There are a number of things you can authorize your attorney to do for. Although you have choices the law does not allow someone who is appointed as your attorney to do certain things.
You can appoint an attorney to only act for you during a specific time or in specific situations. You can also choose to not put an end date on the appointment or to have the appointment only come into effect in certain circumstances. Although a power of attorney is a flexible tool there are rules about when an appointment ends under the law.
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