Powers of Attorney: what if you don’t have one?

With an aging population, mental capacity has become a critical issue for many individuals – particularly the older generation facing the reality of struggling to deal with their own property and personal affairs.   The reality is that there is consequently an increasing need for Powers of Attorney.

The expert Powers of Attorney lawyers at Rogerson Law Group have years of experience advising clients on capacity issues and drafting appropriate Powers of Attorney to protect them.

What is a Power of Attorney?

A Power of Attorney is a legal document by which one person gives another person (the ‘attorney’) legal authority to act on their behalf. By making a Power of Attorney, you get to choose someone you trust to make decisions on your behalf, such as looking after your financial affairs or property, ; or making decisions relating to your health and personal care (for instance, if you were to have an accident or suffer illness in future).

There are three types of Power of Attorney in Ontario:

  • A Continuing Power of Attorney for Property (CPOA) covering your financial affairs and allows your attorney to act for you even if you become mentally incapable
  • A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable.
  • A Power of Attorney for Personal Care (POAPC) covers personal decisions, such as housing and health care

Choosing who will be appointed as your Attorney is an important decision.   They will have full access to and control over your finances and property (or responsibility to make important decisions concerning your health) so having someone you trust and who is financially responsible should be a vital consideration. It’s a good idea to have a frank discussion with your preferred attorney, before signing a POA, to make sure that the attorney understands the responsibilities of the role.

To be legally binding, the document must be correctly drafted, signed and witnessed.  In addition, you must have had legal capacity to make the Power of Attorney.   If it is not correctly executed (or you lacked mental capacity), it will be treated as invalid and it will be as though you never had a Power of Attorney in place.

The signed and witnessed document does not have to be formally registered or deposited in order for it to be binding. You can cancel or modify it at any time. 

Making a Power of Attorney is voluntary.  You cannot be forced to have one but it is advisable to have one because it can save a lot of money and burdensome administrative work for your loved ones if you later become mentally incapable. 

What happens where there is no Power of Attorney?

If you don’t have a Power of Attorney and you become mentally incapable, a family member or close friend may need to make a formal application to become “Guardian” of your property (or person).  However, this is potentially a costly, invasive and time consuming process.

Where there is no one available to be your Guardian, the Office of the Public Guardian and Trustee (OPGT) can step in to be appointed to make decisions on your behalf. We will help you avoid this.

Applying to be Guardian

If you are in the difficult position where you are considering applying to be a loved one’s Guardian, we can advise you.  You can apply to the court to be formally appointed as the Guardian of Property and or Guardian of Person on the basis that the individual in question is mentally incapable of managing their property/making their own decisions about their health and welfare.

We can assist with this application.

The role of Guardian involves various responsibilities and obligations and we will discuss these matters with you in detail.  For instance, a Guardian of Person must consult with and help the individual concerned to make decisions and must make decisions based on what they believe is right for the individual.  The Guardian may also be accountable to either the court or other family members for the decisions that they make.

How can we help?

We strongly advise you to have a Power of Attorney in place.  This means that should you become mentally incapable a costly application by a loved one to be appointed as Guardian can be avoided.

Whatever your circumstances, we will advise you on what will best protect your or your loved one’s interests, reflecting your unique circumstance and needs.  If you are considering a Power of Attorney or seeking to apply to be a Guardian, seek urgent advice to avoid the risk that the Government will appoint someone to make decisions for you.

Contact us at enquiries@rogersonlaw.com

Let us help you

Contact us as soon as you can for specialist, strategic wills, probate and administration advice.  Our estate planning lawyers can help you with your wills, probate and administration needs in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, Barrie and other areas with offices located in downtown Toronto, Barrie, and associated offices in Ottawa.