No one wants to think about a time when you can no longer make decisions for yourself. The thought is a difficult one; but a worse thought is when you are in that situation and you have no one you trust to make those decisions for you. It is for this reason that a set of Continuing Power of Attorney documents should be drafted when you still have the capability of choosing someone you trust to handle your affairs.
In simple terms, a Power of Attorney is a legal document that gives someone else the right and authority to act on your behalf. The validity, requirements, and use of power of attorney documents in Ontario is governed by the Substitute Decisions Act, S.O. 1992, CHAPTER 30., the Powers of Attorney Act, R.S.O. 1990, CHAPTER P.20, and related common law decisions.
In Ontario, there are three types of Power of Attorney documents:
1) Continuing Power of Attorney for Property –appoints someone to make decisions with regard to your financial affairs and continues to be in effect even if you become mentally incapable.
2) Power of Attorney for Personal Care- appoints someone to make decisions with regard to your personal decisions including health care and continues to be in effect even if you become mentally incapable.
3) Non-Continuing Power of Attorney for Property – limited use document that appoints someone to make financial decisions during a specified period of time and cannot be used if you become mentally incapable. For example, these are often used for individuals who are out of the country for long periods and need someone to handle their affairs while they are gone.
This article will focus primarily on the first two Power of Attorney documents. Unlike a Will, a Power of Attorney comes into effect during your lifetime and is only valid until death. After death, your Power of Attorney no longer has power. It is intended to be used during periods of incapacity- meaning times when you are unable to make decisions on your own behalf. Some common examples include: individuals suffering from dementia or Alzheimer’s disease or those who are in a coma or under long-term sedation, among others. However, you should always choose someone you trust because, for example, your Power of Attorney for Property comes into effect as soon as you sign it- meaning that individual can access your bank accounts or sell your property without your knowledge, even if you are still mentally capable. It is for this reason that it is crucial that you trust the person who you have appointed because the position holds a lot of power.
A Power of Attorney is not a mandatory document, but instead one that you give voluntarily to protect you and your assets. You should never force someone, or be forced, to give a Power of Attorney. Furthermore, you cannot give a Power of Attorney if you are “mentally incapable”. In other words, if you are unable to recognize the gravity of signing the document at the time of signing, it cannot be completed (mental incapacity is much more complicated that this, but for ease of reference we will stick with this). Lawyers are not permitted to witness a Power of Attorney document if they have reason to believe that the individual does not have capacity. It is for this reason that it is important to ensure that these documents are finalized while you are still capable. Many adults with aging parents or spouses face this issue because if they have waited too long, the documents can no longer be validly signed. Many people get to the point when they need a Power of Attorney, but are no longer capable of giving one.
What happens if I don’t have a Power of Attorney?
In the situation where you become incapable of making your own decisions, and you do not have a Power of Attorney for Personal Care, many decisions related to personal care would be made by a family member, if any, who would automatically receive the authority to make these decisions for you. This individual would not receive the same amount of authority they would have received as your Power of Attorney. Some situations require the appointment of an individual by the Consent and Capacity Board. If there is no family member who is willing and able to act on your behalf, the Ontario Public Guardian and Trustee would have to be appointed.
In the situation where you become incapable of making your own decisions and you do not have a Power of Attorney for Property, a friend or family member can apply to the Superior Court of Justice to be appointed as your “Guardian of Property”. This process is detailed and can be quite expensive as it requires payment of court fees, capacity assessments, and legal fees. Alternatively, if the Public Guardian and Trustee of Ontario have been named as the statutory guardian, the Public Guardian and Trustee of Ontario can also name an individual to be the Guardian of Property.
The issue with these two options is that you do not have control over who is managing your decisions. Your decisions could be left in the hands of someone you do not trust or one that does not necessarily have your best interests at heart. There are requirements for these individuals to act reasonably, but if you are incapable, you are not able to request an accounting or make a complaint. Someone else would have to be the individual who questions the decisions of your guardian.
Often people say “it’s too early” or “I’ll get to that eventually”. Life tends to get in the way. Some people may find themselves mentally incapable and facing a lawyer who, by law, cannot witness a Power of Attorney document. When it comes to these life decisions, it is best to discuss your options with your lawyer sooner than later to ensure that the decisions regarding your health and your finances are in the hands of someone you trust.