Your Power of Attorney (POA) is a legal document that grants a spouse, child, or loved one the authority to act on your behalf — your attorney — in the event you become incapable of making your own decisions.
An attorney for property will make decisions pertaining to your finances and assets, while an attorney for personal care will make decisions related to your personal care and wellbeing.
When does their decision-making authority take effect?
Unless otherwise specified in your POA, an attorney for property can begin to act on your behalf as soon as they are appointed. An attorney personal care, on the other hand, is only able to make decisions on your behalf when you become incapable.
It is typically your attorney who determines when you are incapable, however, when creating your POA you may require that a third party, such as a health professional or a friend, confirm that you are incapable.
Requirements for a POA
Your attorney, either for personal care or property, has a fiduciary duty to diligently and in good faith act in your best interests in accordance with any of your previously expressed wishes. They must be at least 16 years of age and clearly understand the responsibilities of the role.
The duties of an attorney for property and personal care are set out in Sections 32 and 66 of the Substitute Decisions Act, respectively.
An attorney for property’s duties includes:
- Explaining to the incapable person what their powers and duties are
- Encourage the incapable person to participate, to the best of their abilities, in decisions about their property
- Fostering and seeking regular personal contact between the incapable person and supportive family members and friends
- Consulting from time to time with supportive family members, friends and persons who provide care
- Keeping diligent accounts of all transactions involving the incapable persons property
An attorney for personal care shares many of the same duties as an attorney for property. However, they are also required to:
- Keep records of decisions made on behalf of the incapable person
- Seek to foster the incapable persons independence
- Choose the least restrictive and intrusive course of action
- Not use or consent to electric shock, confinement, monitory devices or restraining the incapable person physically by means of drugs
The duties listed above are not an exhaustive list. A POA should carefully review the Substitute Decision Act to ensure they comply with all their duties and obligations.
Get legal help you can trust when crafting your POA
Blackburn Lawyers can help ensure your power of attorney for property and personal care is appropriately crafted to ensure your assets and personal care are in the best possible hands.
Contact us today for a free initial consultation by calling 905-884-9242 or fill out an online consultation request here.
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
