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Wills and Estates

Question:

What is an Enduring Power of Attorney? Do I need one?

What is a Living Will?

Answer:

An Enduring Power of Attorney is one which continues to give the person you have appointed as your "attorney" power to act even in the circumstance where you (because of a stroke, an accident or some other incident or medical condition) have lost the power to make decisions for yourself. In other words, it is a "full-blown" authority to do anything that you could do, even when you reach the point where you are unable to make the decision to do those things. Often, it is restricted so that it can only be used when you have lost the ability to make the decision for yourself. The "attorney" that is referred to in a Power of Attorney is not (necessarily) a lawyer. It is any person to whom you give the authority to carry out the duties under the instrument. It may be a son, daughter, a spouse or a professional advisor.

I said that it is often designed so that it cannot be used unless you have lost your ability to make the decisions for yourself. This is because we like to make our own decisions while we are able to do so; and many of us do not want to lose our independence or have someone "in the wings" who is able to take a decision regarding our affairs without consulting with us.

The Enduring Power of Attorney is much more than the simple Power of Attorney which one signs at the Bank to allow some relative to write cheques on a chequing account in which we keep a small amount of money for the purpose of paying bills. It enables our attorney to do anything that we could do if we were in a position to make the decision ourselves: buy and sell property, investments and the like; vote shares, purchase and sell securities, etc. Often, also, as part of an Enduring Power of Attorney the lawyer will include (at your request) provisions which set out your wishes in the event that medical procedures have to be taken at a time when you are no longer able to give your consent; or to instruct that certain procedures not be taken in such circumstances. This portion of the Power of Attorney is often referred to these days as your "Living Will".

In our practice, we do not encourage people to sign an Enduring Power of Attorney unless it includes the condition that the power is not to be used unless there has been certification by medical practitioners that, because of illness or infirmity of mind, you are unable to make your own decisions. Presented with such documentation from the medical caregivers, we will release the Power of Attorney to the person named as "Attorney".

Without the direction to your lawyer to hold the Power of Attorney until the presentation of medical certification, you risk losing control over personal decision making and, possibly, property being disposed of without proper consultation with you.

The creation of an Enduring Power of Attorney permits you to choose your substitute decision-maker. This may be of considerable assistance in relieving confusion between members of your family who would otherwise want to participate (generally giving rise to conflict).

Obviously, you want your attorney to be a good money manager and a completely honest person. There should be a provision in the Power of Attorney to require your attorney to make a complete inventory of your assets on the day they assume their job as attorney and later, when the power is at an end, to give a full accounting for what has come in and out of your asset portfolio during the time the attorney had control.

The lawyer who prepared the Power of Attorney considers that his or her client is the person who is signing the Power of Attorney and not that person's family members. The lawyer will want to be absolutely sure that his or her client wants to have the Power of Attorney and that there has been full and complete discussion of its effect. As the client, you need proper advice as to how Powers of Attorney work, what authority you are giving to the person named, the extent of that authority and how Powers of Attorney might be abused by third parties if the document is not properly prepared and executed, containing adequate protections.

For more information on this or any other legal concerns please contact us.

muttarts law firm

Barristers & Solicitors
20 Cornwallis St.
Kentville, Nova Scotia
B4N 3X3, Canada
(902) 678-2157