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What is a Power of Attorney?

What is a Power of Attorney and Do I Need One?

In Ontario there are two (2) types of Power of Attorney. The first deals with the appointment of a third person to handle your financial affairs, while you are still alive but incapable of handling your own affairs due to mental illness or injury. The second deals with the appointment of a third person to make decisions concerning health related issues, including the decision to remain on life support, while you are still alive but incapable of making those decisions yourself due to illness or injury. The latter is more commonly called a ‘living will’ although inaccurately.

Contrary to all the hype that if you do not have a power of attorney the government can step in and take all your property and money, this happens very infrequently. Usually this occurs only when there are no next-of-kin to step in to assist.

If you do not have a power of attorney and something were to happen to you, your next-of-kin can apply to the courts for the power to take care of your affairs while you are incapacitated. Part of the process is to have the person assessed by two (2) doctors and then after they have made a finding that the person is mentally incapable a detailed affidavit from both must be obtained for the Court. The application is brought before the court and then must return to court periodically to ‘Pass Accounts’ (have an accounting of what was done with the estate).

Unfortunately the costs of this procedure is large, usually in the neighbourhood of $4000-$6000+. The small costs of obtaining power of attorney(s) now far outweighs the costs to your loved ones later.

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