Power of Attorney

 LAWYER JASON MALLORY DISCUSSES POA

Recently I gave a presentation on the topic of Power of Attorney. It was interesting to me that most of the Q&A discussion was focused on the considerations for selecting the right person to act as your substitute decision maker in Powers of Attorney. This person is known as the “attorney.”  I often find that people don’t put enough thought into selecting the appropriate person to act as their attorney. After all, your attorney may end up making life-changing decisions on your behalf. In this article, I will outline some important factors that everyone should consider when deciding who to appoint as their attorney.

WHAT IS A POWER OF ATTORNEY?

In Ontario, the Substitute Decisions Act provides for two different types of Power of Attorney documents. The Power of Attorney for Personal Care can generally be considered the “health care” power of attorney; sometimes referred to as a living will. The Continuing Power of Attorney for Property generally deals with decision making regarding your assets, liabilities, and financial matters. For more information on these Power of Attorney documents visit my website, www.kwmlaw.ca

HOW MANY PEOPLE?

You should always appoint a primary and a secondary attorney or consider appointing at least two primary attorneys together. Think of this second attorney as a “back-up.” It is very important to have a back-up attorney in case the primary attorney is unable or unwilling to make decisions for you if the need should arise.

We’ve all heard the saying too many cooks in the kitchen. This can hold true for Powers of Attorney. On one hand, selecting multiple attorneys to act together has the benefit of providing a support network. On the other hand, it is often hard for multiple people to agree on important or difficult decisions. For example, it is common in my experience for the last surviving parent of four children to decide to appoint all four to act together as their attorneys because they find it difficult to select just one or two of their children, or because they don’t want to “hurt anyone’s feelings” by excluding anyone. Appointing this many attorneys to act together can be problematic for many reasons – for example, they may have difficulty agreeing or it may be inconvenient for one of the children because she lives far away.

If you decide to appoint more than one attorney to act together, you must also decide if you will require them to agree unanimously on decisions (known as jointly), or if they can make decisions together or separately (known as jointly and severally). Keep in mind that an appointment jointly will require all of your attorneys to agree on decisions and to sign documents together.

If you appoint multiple attorneys together you also have the option of allowing for majority rule, or appointing a particular person as a tie breaker.

The attorneys you appoint for Personal Care and Property do not have to be the same; although in many circumstances it will be more practical to appoint the same people in both documents.

WHO TO APPOINT?

A good starting point is to consider the following things when determining who you will appoint as your substitute decision maker:

Legal Requirements: The Substitute Decisions Act requires that an attorney must be mentally capable. An attorney for Personal Care cannot be someone that you pay for health care services (i.e. nurse, physician), unless that person is a family member. There are also certain age and other legal requirements that you should discuss with your lawyer.

Trust: First and foremost, you must trust the person you appoint. After all, this person may end up making decisions on your behalf that will affect your health, wellbeing, and finances.

Proximity & Convenience: This is often a consideration when a person appoints their children as attorneys. Often children live hours away, or in a different province or country. Acting as an attorney is a very demanding role, and often requires daily involvement. In many situations it will not be practical or convenient to appoint someone who does not live relatively close to you.

Familiarity: It will be easier on the attorney if they are already familiar with your assets and liabilities, and your wishes for future care and treatment if you become mentally incapable. An attorney who is familiar with where you live, work, and conduct business will likely have an easier time than would someone who must familiarize themselves with your affairs after you become incapable.

Knowledge & Ability: Acting as an attorney requires a lot of attention and diligence. Consider appointing an attorney for property who has a good track-record managing their own financial affairs. Likewise, appointing an attorney for personal care who is familiar with medical decisions and who you feel will be able to maintain a clear mind when making emotional health care decisions is important.

Age & Health: Keep in mind that as we age, so do those people whom we appointed as attorneys. With age, the likelihood of physical or mental health issues increases. Make sure that you re-evaluate your attorney appointments periodically over time to make sure that, if the need arose, the person you appointed has the energy, ability, and willingness to act.

CONCLUSION

Everyone’s circumstances will be different, and there is no “one size fits all” answer for whom you should appoint as your attorney. There are, of course, other possible considerations, but if you at least consider the above factors you will be on your way to choosing an appropriate attorney.

Jason P. Mallory, H.B.A., J.D.

For more information visit Kerr Wood & Mallory

Leave a Reply

Your email address will not be published. Required fields are marked *