POWER OF ATTORNEY LEGAL SERVICES
Wealth planning is important for those of you who are concerned about your family’s future and want to ensure that lack of planning will not result in unnecessary hardship in the event of an unforeseen event, such as disability or premature death. Regardless of your particular set of priorities, the only way in which you can ensure that your wishes will be carried out is by structuring a plan, usually with the assistance of an advisor. Consideration should be given to financial, disability, estate, and insurance planning in order to achieve your objectives in the most optimal manner.
The Importance of Having Powers of Attorneys
A Power of Attorney (also known as a “POA”) is possibly the most important document in your wealth plan. It allows you to appoint someone to act on your behalf (“attorney”) concerning either your property or your personal care in the event you are unable to make decisions as a result of illness or disability. Some of you may feel that it is unnecessary for you to have POAs since you have a Will. However, did you know that your Will only takes effect when you die. As such, your personal representatives named in your Will do not have any authority over your affairs while you are still alive. If you do not have any Power of Attorneys, did you know that members of your family will have to apply for a court order appointing them as your attorney, a process that can cost several thousand dollars? Like any important legal document, you should not wait until unforeseen circumstances force you to prepare your Powers of Attorney in haste. It should be prepared and signed while you are in good health and can take the time to make the right decisions. There are three types of Powers of Attorney. A Continuing Power of Attorney for Property is limited to financial matters and is used in estate planning context. A non-continuing Power of Attorney for Property is limited to financial matters and can be used, for instance, in real estate context. In a real estate context, a Power of Attorney for Property can be used where one of the parties to the agreement of purchase and sale is unavailable to execute legal documents on closing. In such a case, this party can appoint an attorney by way of Power of Attorney for Property to act on his/her behalf with respect to this transaction. A Power of Attorney for Personal Care is limited to medical and personal care matters.
Preparing Powers of Attorney
We recommend that your Powers of Attorney be prepared by your lawyer. Attempting to draft a Power of Attorney yourself is a risk. Errors, omissions, inaccuracies or contradictions in self-made Power of Attorneys can result in expensive and time-consuming litigation in addition to frustrating and even destroying family relationships. Our legal fees for a Power of Attorney (both personal care and property) are $350.00 + disbursements + HST. For a couple, seeking both powers of attorney for property and personal care, our legal fees are $350.00 + disbursements + HST. Please note we will make hospital visits and home visits for an additional fee. If you would like to complete your Power of Attorney’s at the same time as your Will: $299.00 + disbursements + HST Our services include:
❖ Reviewing your completed Power of Attorney questionnaire;
❖ Contacting you to obtain relevant and clarifying information for your Power of Attorney;
❖ Explain the nature and effect of your Power of Attorney;
❖ Drafting your Power of Attorney based on your instructions;
❖ Meeting with you to review your Power of Attorney;
❖ Amend your Power of Attorney based on your feedback and instructions, if applicable;
❖ Witness your signature;
❖ Provide you with original copies of your Power of Attorney;
❖ Maintain a true copy or original copy of your Power of Attorney at our office, if requested; and,
❖ Instruct you regarding storing and caring for your Power of Attorney.
It is also important to note that Power of Attorneys can be prepared in conjunction with your Will at an additional cost.
Appointing an Attorney
The attorney is the person appointed in your Power of Attorney to carry out its terms and instructions. The attorney can be, for example, a spouse, child over the age of majority, relative, friend, acquaintance, or a combination of these. It is important to carefully choose your attorney. A trusted relative or family friend is the most appropriate choice as this person may be called upon to exercise considerable discretion when administering your affairs. It is important to choose someone who is a resident of Canada (and preferably a resident of Ontario), who is trustworthy, responsible and who has knowledge of your affairs. It is also important to make sure the attorney is willing to assume these duties, and is aware of your affairs. In cases where individuals do not have Power of Attorneys, the attorney is appointed by the courts.
If you are interested in preparing Power of Attorneys, please complete the Power of Attorney section of our Wills & Powers of Attorney Questionnaire and return it to our office. You can submit the completed Questionnaire either by facsimile (905) 564-3134 , by email or in person at one of our conveniently located offices. Once we receive your completed Questionnaire, it usually takes one to two business days to prepare drafts and set up appointments for signatures. If also preparing a Will, see our Will webpage for timeline. We can however, accommodate emergencies and vacations. Your appointment will be with Harsimrat Aujla. Following your meeting you will keep the original copies of your Powers of Attorney. It will be important for you to keep them in a safe place where they cannot be stolen, altered or destroyed. We may retain a true original copy or original at our office if requested. Please do not hesitate to contact us with any questions you may have.
Frequently Asked Questions
What if I become incapable without having prepared a Power of Attorney?If you do not have a spouse, partner, or relative who is prepared to make an application to the Court to become your court-appointed guardian, and an assessor has issued a certificate of incapacity, the government (Public Guardian and Trustee) will become your guardian over your property or personal care or both, depending on the circumstances. The only way to avoid this is to have Powers of Attorney properly prepared and duly executed while you are in good health and can take the time to make the right decisions.
How does my Will fit into all of this?Your Will only takes effect upon your death, while your Powers of Attorney take effect during your lifetime. It is a good idea to have your Will and Powers of Attorney prepared together and stored together so that the transition between incapacity and death is seamless. These documents are important for your overall estate plan.
Can I revoke my Power of Attorney?Yes, but the revocation must be done in writing and executed in the same way as a continuing power of attorney. After the revocation form has been executed, you must notify all persons/corporations who were served with the power of attorney and all persons/corporation who might act upon the instructions of the attorney whose powers are being revoked.
When does my Power of Attorney take effect?A Power of Attorney for Personal Care becomes effective when a qualified assessor, appointed by the provincial government, confirms that the donor (person appointing an attorney) is incapable of making personal care decisions. A Power of Attorney for Property takes effect immediately.
I already have Powers of Attorney, when should I make new ones?"If your Powers of Attorney were prepared prior to 1995, they only apply to property matters and do not cover personal care matters. In such a case, we recommended preparing a Power of Attorney for Personal Care. You should periodically review your Powers of Attorney to confirm whether they still reflect your intentions. If they do not, you should immediately contact your lawyer to have new Powers of Attorney prepared and revoke the old ones.