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Power of Attorney

Power of Attorney

artA Power of Attorney is a document that you sign that gives someone else the authority to make decisions and sign documents on your behalf.

The Province of Ontario has passed legislation called the Substitute Decisions Act changed the power of attorney law effective April 3, 1995 and March 29, 1996 creating two kinds of Power of Attorney available.

GENERAL POWER OF ATTORNEY FOR PROPERTY

This kind of power of attorney allows you to name someone to make decisions and sign documents on your behalf concerning any property or financial matters.

Who can you name?
You can choose who will be your power of attorney for property. The person must be at least 18 years of age and can be your spouse.

Can you name more than one person?
Yes.   Usually, if you name more than one person you would usually require them to act jointly and agree on each decision.

What if my attorney can?t act or dies before me?
If your attorney dies or refuses to act you may not have an effective power of attorney. We, therefore, recommend that you appoint an alternate to protect you from either event.

What responsibilities does the attorney have?
In addition to other responsibilities the attorney must:

  • act with honesty and integrity and in good faith, for your benefit.
  • encourage you to participate, to the best of your abilities, in decisions about your property.
  • consult from time to time with your supportive family and friends and with whoever is providing personal care to you.
  • put your financial needs first. If there are funds left over, the needs of your dependents are the next priority. After that, if there is still money left over, it may be spent to satisfy your other legal obligations.
  • keep accounts and be prepared to provide a full accounting if required.

 

What is all the concern about a “Continuing” or “Enduring” power of attorney?
The law says that a power of attorney can’t be used after you become incompetent unless when you made the power of attorney you specified that you wanted it to be able to be used if you later become incompetent. If you said this in the power of attorney document, then it is a continuing power of attorney.

What will happen if I don’t have a power of attorney?
The government, contrary to rumours circulating, will not take all your money. However, your family may be inconvenienced and put to additional expense and delay in arranging to get the proper authority into their hands. Secondly, unless you have made a power of attorney you have no guarantee as to who will eventually end up making your decisions for you.

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