The Rural Voice, 1998-12, Page 58The powers of a
Power of Attorney
By Brian Lang
Agriculture and Rural
Representative
Duff's Corners, OMAFRA
Who will take care of your affairs
if you are incapacitated? In the event
of your death the estate executor will
administer your estate. But their
authority only begins after your
depth. It provides no management
authority during your lifetime. You
must designate someone to -have this
authority.
The Substitute Decisions Act
came into place in April, 1995. The
act allows a person to designate a
Power of Attorney to make both
financial and personal care decisions.
They do not have to be the same
person.
A Power of Attorney grants
someone authority to act on your
behalf and to sign your name, so the
Attorney should be selected with
care. They need to be trustworthy and
able to competently handle your
affairs. It is practical to choose
someone who lives close enough to
be able to deal with situations easily.
The actions of the Attorney are
binding on the Grantor, but there is
an obligation to act in the Grantor's
best interests and to keep accounts of
transactions. The use of the word
"Attorney" does not mean that a
lawyer has to be appointed. In fact, it
is usually someone else.
It is possible to name more than
one person to "Jointly" or
"Severally." "Jointly" means that all
would have to sign documents to
make them legal, and "Severally"
means that any one of the attorneys
could act on your behalf. If they are
required to act jointly, include
instructions on treating disagreements
in the Power of Attorney. Some
lawyers favour naming an alternate to
act in the event that the original
person is unable to serve as attorney.
In the absence -of a Power of
Attorney, the law allows the Public
Guardian and Trustee office to look
after a person's affairs. Family
members, a trust company selected
54 THE RURAL VOICE
Legal Advice
by the incapable person's spouse or a
person who already has a Power of
Attorney for Property for some but
not all of the incapable person's
property may apply to replace the
Public Guardian and Trustee.
Security may be required to be posted
by this new guardian.
A Power of Attorney that was
made without considering the
implications of the new law should be
checked with a lawyer to be sure it is
valid under the new legislation.
Specific wording is required in order
to be valid.
There are two basic types of
Power of Attorney. The first is a
Power of Attorney to do business
known as a "Continuing Power of
Attorney for Property." The second is
a "Power of Attorney for Personal
Care" wherein you appoint someone
to make medical and other care
decisions on your behalf if you are
not able to make them. In addition, a
person may wish to utilize a limited
Power of Attorney for a specific
purpose or time length.
The Power of Attorney is often
drawn up at the same time as a will
and it should be updated as
circumstances change. Lawyers will
often retain the document in their safe
until the Grantor's health
deteriorates, removing the possibility
for it to be abused, or misplaced. It is
important to discuss your wishes with
the person named in your Power of
Attorney so that they can manage
your affairs in the way that you
would like.
One of the problems with a
continuing Power of Attorney for
property is that once it comes into
effect, it will remain in effect until
revoked. If revoked, it ceases to exist
and can not be exercised again.
Accordingly, if a person is mentally
competent, but wishes to leave his
business affairs in the hands of
someone else for a short period of
time, a continuing Power of Attorney
for property should not be used. A
separate Power of Attorney for a
specific purpose or a limited time
should be prepared.
For example, financial institutions
have Power of Attorney forms that
apply only to that institution. The
Power of Attorney may be limited to
the operation of bank accounts and
payment of bills, mortgages and loans
or it may be general and permit the
attorney to borrow money in the
principal's name and manage
investments. As with any legal
document, read it carefully before
signing and consult a lawyer if you
have concerns or questions about it.
The lender's Power of Attorney
may be useful in addition to a legal
Power of Attorney, but is usually too
limited by itself to allow someone to
carry on the farming business.
Under the Substitute Decisions
Act, a person can choose someone
through a Power of Attorney to make
personal care decisions for you if you
are mentally incapable of making the
decisions yourself. You cannot
appoint as attorney someone who is
providing you with care for
compensation unless that person is
also a relative.
The Power of Attorney for
Personal Care can include instruction
to the Attorney, with regard to your
wishes. The instructions need to be
clear and specific and should be
discussed with the person appointed
as attorney. Remember, you will not
be able to clarify your wishes at the
time the Power of Attorney is needed.
Contact a lawyer to get your affairs in
order.0
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