POWERS OF ATTORNEY (December 2, 2020)
If you’ve been involved in estate planning, you may have heard the term Power of Attorney. It’s common to associate “attorney” with “lawyer”, but in this context that is not the case. A Power of Attorney is a document that gives a person control or power over the assets or personal care of someone else, who is called the Grantor. The person appointed as Power of Attorney is like an alternate decision-maker for the Grantor while the Grantor is alive; this power ceases when the Grantor dies.
Selection of a Power of Attorney must be in writing and signed by the Grantor and two witnesses. A Grantor may select one or more people to act as their Power of Attorney; multiple Attorneys may be directed to act jointly or severally.
There are two main types of Powers of Attorneys: A Power of Attorney for Property, and a Power of Attorney for Personal Care.
A Power of Attorney for Property essentially controls most assets, such as bank accounts and stock investments, or real property of a Grantor. A Power of Attorney can be either continuing on non-continuing – “continuing” in this context means that the powers of a Power of Attorney for Property continue even if the Grantor becomes mentally incapacitated. If the Grantor intends for their Attorney to be continuing, this must be in writing in the document. A General Power of Attorney for Property has unrestricted control over the Grantor’s assets. Alternatively, a Grantor may direct the Attorney to maintain their assets under rules. If no time is specified, the Power of Attorney for Property goes into effect at the time of signing the document – however, the Grantor may choose what date or event will trigger the Powers of the Attorney. The elected Attorney or Attorneys must be at least 18 years of age; of sound mind; and capable and willing to assume the role.
A Grantor must have the capacity to appoint a Power of Attorney for Property. A grantor must:
- Know the nature and extent of their property;
- Be aware of their obligations to any dependents;
- Be aware that the Attorney can do almost anything the Grantor could do (except create a Will or other restrictions in the Power of Attorney document);
- Know that the Attorney must account for dealings with Grantor’s property;
- Know that the Attorney can be revoked if they are incapacitated;
- Understand that assets might decline if the Attorney fails to act prudently; and
- Understand the possibility that the Attorney might misuse their authority.
A Power of Attorney for Personal Care is responsible for the basic needs and welfare of a Grantor. There are six general areas of care that a Power of Attorney for Personal Care are responsible for, which include: healthcare, nutrition, hygiene, clothing, shelter and safety. A Power of Attorney for Personal Care only takes effect once the Grantor becomes incapacitated. The elected Attorney or Attorneys must be at least 16 years of age; of sound mind; capable and willing to assume the role; and cannot be providing health care, social or other support services to the Grantor for compensation (this specific restriction does not apply if the Attorney is the Grantor’s spouse, partner, or relative). The Attorney for Personal Care must keep records of all personal care decisions that are made on behalf of the Grantor, including events like doctor and/or hospital visits and records.
A Grantor must have the capacity to appoint a Power of Attorney for Personal Care. A grantor must:
- Have the ability to understand whether the Attorney has a genuine concern for the Grantor’s welfare; and
- Appreciate that the person may need to have the Attorney make decisions for the Grantor.
Make sure you have the right people to care for you and your needs. Give Arkadiusz Empel of Empel Law a call at 416-479-8531 to assist you with this and any other legal questions you may have.