Power of Attorney: What is it and why do I need one
by Meiz Majdoub
According to Statistics Canada in 2019, Canada has among the highest life expectancy in the world. Men can expect to live to the age of 80 years old and women can expect to live to the age of 84 years old. Planning for a secure and healthy future is vital as we live longer. One of the biggest mistakes you can make when reviewing your estate plan is not considering the possibility of incapacity.
In this article, I will be discussing 1 of the 2 Powers of Attorney: Personal Care.
Assigning a substitute decision maker with Powers of Attorney (“POA”) can be a useful tool to legally protect your long-term health and financial interests. Designating a POA for personal care may be appropriate if you or someone you love can no longer understand or appreciate their health-related decisions.
What are Powers of Attorney?
A POA is a legal document that grants one or more person, or an institution, the authority to make decisions on someone else’s behalf. Unlike your Will, POAs are effective when you are still living but are incapable of making your own decisions. There are two types of Powers of Attorney: POA for personal care and POA for property. POA for personal care, the substitute decision maker can make decisions concerning your own heath care, nutrition, shelter, clothing, hygiene or safety.
When does a POA come into effect?
A POA comes into effect once the person is incapable of making a decision. In other words, when a person is not able to understand the information relevant to the decision or appreciate the consequences of the decision or lack of decision. In Ontario, assigning a new POA will revoke a previous one, unless the person specifically arranges for multiple Powers of Attorney.
How is mental capacity assessed?
There is a legal presumption that every person is mentally capable. To determine if a person is mentally incapable of making a particular decision then that person must undergo an assessment by a capacity assessor. A capacity assessor is a trained professional who has been designated by the Public Guardian and Trustees Office. This office has a list of certified capacity assessors in the province of Ontario. It is the capacity assessor who confirms that someone has capacity if they:
- have an ability
to understand information relevant to a decision; and - can appreciate reasonably
likely consequences of a decision or lack thereof.
Your ability to understand includes the ability to process and retain facts long enough to make decisions. As long as there is consistency in your conclusions each time the issue is raised, being forgetful or a lack of experience is not enough to render a person incapable.
Your ability to appreciate relates to your ability to evaluate and weigh the risks and benefits of your options. This is often referred to as a person’s capacity for “reason”. It includes being able to realistically look at the outcomes of a decision, and being able to justify your choice. Emphasis is on the process of your decision, not the outcome.
Avoid contentious and costly legal disputes
While there can be advantages of assigning a POA for personal care, you should be very careful about whom you choose, given the far-reaching effects of this decision.
Unfortunately, many cases result with people being assigned a POA that they would have never considered or wanted to be their substitute decision maker. In order to avoid costly and contentious legal proceedings, it is important to be proactive and consider appointing substitute decision makers of your choice in case of incapacity.
Do you suspect that you or your loved one may no longer have capacity?
Vulnerable groups include, but are not limited to, people with:
- Dementia,
Alzheimer’s or other degenerative diseases - Developmental
and cognitive disabilities - Delusions,
delirium or intoxication - Parkinson’s
disease, multiple sclerosis (MS) or brain injury/trauma
Indicators that you or your loved one might be losing their capacity for personal care:
- Forgetting to
take medications or failing to follow medical advice - Letting
strangers in the home - Neglecting
hygiene or diet - Failing to
properly respond to hazards or emergencies - An inability to
find a way home if lost
We are here to provide guidance. Make an appointment with a Lawyer or Notary, if you don’t know of one, kindly contact us and we can refer you to one.
We welcome questions, enquiries and comments. We are here for you.
This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. We are by no means suggesting or making any recommendations, except to highlight the need for it. Only a competent Lawyer can provide that service.
About the writer
Meiz Majdoub, B.Comm, is a financial professional with over 30 years of experience and is accredited with a CLU, CH.F.C. He is also a member of the Conference for Advance Underwriters (CALU). and the Estate Planning Council Of Ottawa. He has helped individuals, organizations and corporations attain their goals in the areas of Financial & Estate Planning, Insurance, Living Benefits and Employee/ Group Benefits. He can be reached at: 613-749-4007, or meiz@majdoub.com