There are important considerations in addition to a will when planning for your future and the future of your estate. If you lose mental or legal capacity, legally you will not be able to make decisions regarding your medical treatments and finances. Creating a Power of Attorney, Advanced Directive and a Health Care Representative Agreement, allows you to control who will be making decisions on your behalf.
Power of Attorney
A Power of Attorney is a document where a person (you the donor) appoints another person (your attorney) to act on your behalf. Your attorney may continue acting on your behalf if you lose capacity if you have an enduring power of attorney.
What can my Attorney do?
You may allow your attorney to have a general control over all of your finances and assets; or limited control over specific financial matters, such as cashing your cheques. You may also grant your attorney the power to act immediately on your behalf, or upon a future event, such as your incapacity.
What are the duties of my Attorney?
Your attorney is under a legal duty to:
- act honestly and in good faith;
- act in your best interests, taking into account your current wishes, known beliefs and values and any directions that are set out in the document;
- not dispose of any property that the attorney knows is specifically gifted in your Will;
- keep your assets separate from the attorney’s assets; and
- keep proper records, including creating and maintaining a list of your property and liabilities.
Can I appoint more than one attorney?
Yes, it is possible to appoint more than one attorney. If your attorney is unable or unwilling to act it is advisable to have an alternate attorney available to assist you. You can also appoint attorneys to act jointly requiring that all decisions be made in consensus.
Who should I appoint as my attorney?
Your attorney should be someone you trust and will be able to deal with your financial and legal matters in a competent manner that adheres to your wishes. You should always consult with your attorney before making such an appointment.
Does my Attorney get payment for being my attorney?
It is your decision as to whether you wish to pay your attorney for their services and such remuneration must be specified in the power of attorney. Attorneys are, however, entitled to reimbursement for reasonable expenses incurred through their role as an attorney.
Advanced Healthcare Directive
An advance healthcare directive is a document allowing you to set out your written instructions to your representative and future health care providers in the event you are unable to communicate them. The directive may include consent to or refusal of certain treatments or life support. Advanced directives are legally binding but they cannot include instructions to do anything that is illegal or omit to do anything that is required by law.
Health Care Representative Agreement
Health Care Representative Agreements allow you to appoint a representative to make health and personal care decisions on your behalf. You can appoint more than one representative, so that if your first representative is unable or unwilling to act, your alternative representative will be permitted to assist you. Your appointed representative has a duty to follow your instructions which helps ensure that decisions regarding your health care will be made in accordance with your wishes. You can appoint anyone except a person who is paid to provide you with personal or health care or who is an employee of a facility where you receive personal or health care, unless that person is your child, parent or spouse.
Further information on Trusts and Estate Law .
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.