A Power of Attorney is a valuable part of an estate plan. By using a Power of Attorney, you can control who will make decisions about financial and legal matters for you in case you lose capacity.
A Power of Attorney is a legal document used by an individual (the “donor”) to give authority to another person (the “attorney”) to make legal and financial decisions for the donor. The attorney is the agent of the donor under the document. As an agent, the attorney only has the authority specified in the Power of Attorney.
What are the different types of Power of Attorney (POA)?
A General Power of Attorney has no limits on the powers of the attorney to make decision about the financial and legal affairs of the donor. The attorney can make all decisions that the donor could make. However, the attorney cannot make decisions about personal affairs such as consenting to health care, or deciding where the donor should reside.
A Specific Power of Attorney is a document that gives limited or specified powers to the attorney or for a specific purpose. The attorney could be authorized to sign cheques from a specific account to pay the usual household bills. The Specific Power of Attorney could be limited to the authority of the attorney to approve and sign all documents related to the sale of a house and to deposit the proceeds in an account.
What is an Enduring Power of Attorney (POA)?
Normally a Power of Attorney lapses or ceases to be effective if the donor becomes incapable. The POA is only valid if the donor still has mental capacity. This restriction limits the usefulness of a POA. The Power of Attorney Act permits a donor to make an Enduring POA. This type of POA continues to be valid even if the donor at a later time become incapable. An Enduring POA can be a useful tool in an estate plan.
Who can make a Power of Attorney (POA)?
An adult person that has the required capacity can make a POA. The usual test to determine capacity to make a Power of Attorney requires the donor know the attorney can exercise all the powers the donor could during his lifetime, the donor appreciate the nature and extent of his property and financial affairs over which the attorney will be entitled to assume control, that the POA cannot be revoked if the donor becomes incapable, and that the attorney can deal with everything the donor owns and the legal affairs.
How Can a Power of Attorney be Revoked or Ended?
A Power of Attorney can be revoked by the donor if the donor still has the capacity required to make a valid Power of Attorney. If the donor has lost capacity, and I no longer capable, then the donor cannot revoke or end the Power of Attorney. Revocation does not have to be in writing but it is wiser to have a written document. Notice of the revocation must be given to the attorney and every person that the Attorney may have dealt with. If the Power of Attorney covers land then a Notice of Revocation must be filed at the Land Titles Office.
Can you appoint more than one Attorney?
You can appoint one individual to act as your attorney or more than one. If you appoint more than one, then they can be appointed to act together or individually. You could also appoint an alternate attorney in case the first named attorney cannot act for certain reasons.
When does a Power of Attorney take effect?
A Power of Attorney is normally effective from the time it is properly signed by the donor. Conditions can be attached to the Power of Attorney to make it effective at a later date, upon the happening of a certain event or when certain specified circumstances exist.
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