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Do I Really Need A Power Of Attorney?

The short answer to this question is “yes” but if you were wondering why, keep reading!

There are two kinds of power of attorney documents that we often prepare for our clients – the Power of Attorney for Property (appoints someone to make financial decisions on your behalf) and the Power of Attorney for Personal Care (appoints someone to make health and personal care decisions on your behalf).

Avoid Much Larger Costs Down the Road

If you become incapable and you have not executed a valid power of attorney, nobody will be legally able to access your assets on your behalf. That means nobody will be able to pay your bills, invest your funds, or pay your taxes. In order to get this kind of access, your loved ones would have to either go to court to have someone appointed as your guardian or, if the Public Guardian and Trustee (PGT) has been appointed as the person’s guardian, apply directly to the PGT to be appointed as the person’s guardian. Both of these options are orders of magnitude more expensive than having a power of attorney prepared while you are capable. Both of these options also likely involve obtaining a capacity assessment of the incapable person.

Choose who Chooses For You

If you do not appoint an attorney for personal care, medical professionals may refer to the Health Care Consent Act (https://www.ontario.ca/laws/statute/96h02) in order to obtain consent to treatment. This Act sets out a hierarchy of individuals who can be asked to consent to or refuse treatment on behalf of an incapable if there is no valid power of attorney. If you do not have a valid power of attorney for personal care, the decision-maker may be someone you did not want to be in this position. Alternatively, if someone has to bring a court application in order to be appointed as your guardian, the court may also appoint someone that you would not have wanted as your substitute decision-maker. If you execute powers of attorney, you decide who should be able to act on your behalf.

Avoid Disputes Between Loved Ones

If a medical professional is forced to refer to the Health Care Consent Act in order to get consent to treatment, there may be two or more individuals who have equal priority to make decisions on your behalf. For example, one of the levels in the hierarchy is “a brother or sister of the incapable person.” If the incapable person had more than one sibling and these individuals did not all agree on the best course of action, disputes could arise between family members.

In that same vein, if a guardian must be appointed by the court or by the PGT, there could be competing applications from family members who feel that they should be appointed. A properly executed power of attorney can avoid that power struggle.

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About the Author

EMMA O’DONNELL

EMMA O'DONNELL

Emma is a lawyer in Burlington who is proud to serve her local community with real estate, business law and wills & estates expertise.