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Power of Attorney

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What is a Power Of Attorney

A Power of Attorney is a legal document that allows you, the “donor”, to give another person, the “attorney”, authority to act on your behalf for specified matters. Even if you give someone Power of Attorney you do not relinquish the right to continue to act on your own behalf. You still have control of your affairs.  You maintain your right choose as long as you have mental capacity.

You may want to allow your attorney to “continue” his or her authority by making your Power of Attorney document a “Continuing Power of Attorney for Property”.  It is called “continuing” because the appointment “continues” even after you are no longer mentally capable to make the decisions yourself about your property. Another common word to describe this is “durable” which means the same as “continuing”.

Then you may want to have a Power of Attorney for Personal Care.  This document gives your attorney the authority to make personal care decisions on your behalf when you no longer have capacity to make those decisions.

When Would Powers of Attorney Be Used

When you are unable to deal with your affairs. For example:

You are incapacitated due to illness and wish to give a relative, friend or Lawyer the authority to act on your behalf for matters of property; or to make personal care decisions.

You are elderly and cannot get around very well. You may wish to have someone make deposits to and withdraw funds from your Bank Account on your behalf.

You may want someone to have authority to deal with your affairs while you are away from home for an extended period.

Who Can Be Your Attorney?

Anyone who is of legal age and is mentally competent. Choose someone in whom you trust and who will carry out your wishes, i.e. relative, friend, Lawyer, or Trust Company.  

What Are The Legal Requirements?

The Power of Attorney must be in writing and signed and sealed by the Donor & that is the person appointing the Attorney, The Attorney is the person you appoint to look after your affairs as stated in the Power of Attorney document. A witness to your signature may be required.

What Powers Will My Attorney Have?

A General Power of Attorney gives the Attorney power to act in every capacity for the donor (except make a will). A specific Power of Attorney (such as for personal care) gives the Attorney power to carry out only specific acts on your behalf.  Given the extraordinary powers given to your attorney, you have to be very careful to use the correct wording to ensure the document meets your goals.  

What Happens If I Become Mentally Incapacitated?

A Donor can provide that a Power of Attorney (a “continuing” or “durable” power of attorney as noted above) may continue notwithstanding any mental infirmity providing it has been witnessed by a person other than the donee or his or her spouse. In other words, the Attorney nor his or her spouse cannot be a witness to your power of attorney document. If they are and you become mentally incompetent then your Attorney cannot act on your behalf because of those witnesses to your signature.

What Are The Risks In Giving A Power Of Attorney?

There is always the risk the Attorney may abuse the Power of Attorney. It is crucial that you are absolutely confident in the character of your attorney because there is always a risk your attorney could go rogue against your wishes, even though he or she believes they are acting in your best interests.  Be sure to consult family, close friends and consult a lawyer to ensure your interests are protected.

What Can I Do To Prevent The Misuse Of The Power Of Attorney?

It is wise to have a Lawyer prepare the Power of Attorney document, to ensure all terms and restrictions are clearly identified.  One may consider appointing two Attorneys to act jointly. Give specific rather than general Powers of Attorney. Check Bank Statements and Cancelled Cheques carefully. Place a limit on the amount that an Attorney can withdraw without additional authorization from you. Keep an up-to-date inventory of your property, jewellery, savings, silverware, furnishings, and investments.

What Can I Do If My Attorney Misuses The Power Of Attorney

If you believe that your Attorney has taken advantage of his or her position, you can cancel the Power of Attorney.  In the event the Power of Attorney is abused, the Donor can sue the Donee (Attorney) for any monies that cannot be properly accounted for. If you believe your Attorney is using your property or money without your consent for his or her own benefit, you should consult with a Lawyer and the Police.

What Will Happen If I Become Incapacitated And Have Not Prepared A Power Of Attorney?

It will be necessary to apply to the Courts to have an individual appointed to administer your Estate while you are alive yet unable to handle your own affairs. The Public Guardian and Trustee may take over your estate but that will only be in the case of a last result,  For example, if there is no one who is willing or able to act on their behalf. 

We Are Here To Help

See the “DOWNLOAD WORKSHEET” link which provides you with a free guide to assist you in collecting all of the relevant information for us to properly advise you and prepare your Will and Power of Attorney documents.  It is important that you fill this out BEFORE you attend our office.  We look forward to meeting you!  

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If you’re in need of legal assistance, please don’t hesitate to contact us. We’re here to help, and we look forward to working with you.

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