What
is a Power of Attorney for Property or an Enduring Power of Attorney?
The two terms
mean the same thing. Both are terms for a legal document, signed
by you in front of two witnesses. In it, you authorize a person,
or people, to make financial decisions on your behalf if, because
of accident or illness, or in the event that you become mentally
incapable, you should become incapable of acting for yourself.
What
Does a Power of Attorney for Property Do for Me?
Ask yourself
what would your family do if they didn't have the power to access
bank accounts or manage your business affairs if you were in a car
accident and in a coma. Further what would happen to your finances
if you became mentally incompetent. A Power of Attorney for Property
authorizes someone to deal with and manage your property for you.
Your property includes all your assets and finances unless you specifically
exclude certain things.
Does
My Chosen "Attorney" Have To Be a Lawyer?"
Absolutely not.
The person you designate is your "attorney". You can name
one attorney or more than one. You can require that they act together
("jointly") or you can have them act separately as well
as together ("jointly and severally"). If you designate
more then one, you should include some form of disagreement resolution.
Why
Would I Want A Power of Attorney for Property?
Absolutely not.
The person you designate is your "attorney". You can name
one attorney or more than one. You can require that they act together
("jointly") or you can have them act separately as well
as together ("jointly and severally"). If you designate
more then one, you should include some form of disagreement resolution.
What
Should I Consider in Making A Power of Attorney for Property?
Who do you
want to manage your finances?
What instructions will you give them?
Will it be limited or general?
Do you want more than one attorney, and if you want more than
one, are they to act jointly or jointly and severally?
If your attorney can't act or continue to act, do you want to
name a substitute?
What
is a Limited Power of Attorney for Property?
A "limited"
Power of Attorney for Property is given to someone for certain specific
items and no others. For example you may appoint someone to pay
your bills, write cheques, but do noithing else.
What
is a General Power of Attorney for Property?
A "General"
Power of Attorney for Property authorizes your attorney to do anything
that you can do, except writing your will.
What
is a "Continuing" Power of Attorney for Property?
A "Continuing"
Power of Attorney for Property continues if you become incapable
of managing your property. Itspecifies that it is a "continuing
power of attorney for property", and/or it says that it can
be used during your incapacity. If it doesn't say that, it is not
a continuing power of attorney and it cannot be used during your
incapacity and it ends if you become incapable. Obviously this defeats
the purpose and so you must insert this clause in your Power of
Attorney for Property.
What
if I Become Incapable and Do Not Have a Power of Attorney for Property?
If you become
incapable and do not have a power of attorney, the Public Guardian
and Trustee becomes the guardian of your property. If someone who
cares about you wants to be named "guardian" instead,
they can go to court and ask to be named your guardian. It is far
more efficient and cheaper if you appoint your own guardian before
the need arises. Going to court is always expensive and wasteful.
Do I
Have to Sign A Power of Attorney for Property?
No, absolutely
not. No one can make you sign a Power of Attorney for Property.
However it is very important to consider whether to make a Power
of Attorney for Property. You also do not need to make a will, but
in both cases, you stand to lose a great deal and have your wishes
ignored if you do not prepare both. If you don't make a Power of
Attorney for Property, someone may have to be formally appointed
some day to make decisions for you, if the decisions involve matters
other than medical treatment. This could easily be a court appointed
stranger who has no knowledge of you, your wishes and can legally
ignore your family's requests and needs.
What
does "Being Incapable" mean?
Being incapable
means not being able to understand information that is relevant
to a decision and not being able to evaluate the likely consequences
of making it.
Who
Will Say I Am Incapable?
You define that
in your Power of Attorney for Property. You might require that two
doctors must agree that you are incapable before the Power of Attorney
comes into effect.
You must also
be capable of granting an attorney at the time that the document
is signed. This generally means that the grantor must show that
s/he is aware of the nature and extent of his/her property, that
/she understands his obligations to his/her dependants and the nature
of the power being granted to the attorney.
What
if do not feel I am incapable?
If you are found
incapable, you have the right to request a capacity review hearing
and be represented by counsel at that hearing. The person you named
to act for you, in your power of attorney has to explain this right
to you and cannot try to prevent you from contacting a lawyer or
asking for a review hearing.
Does
the Person I Appoint Have Controls?
When the power
of attorney for property is in effect, the person you have authorized
to act for you must act in your best interests and keep a complete
record of all transactions made on your behalf. Your representative
can do anything you would do, including selling your house, unless
you set up limits or restrictions in your Power of Attorney for
Property. They cannot however change your will.
How
Long Does a Power of Attorney for Property Last?
A Power of Attorney
for Property lasts until you die or recover sufficiently to resume
control of your own affairs. If you feel that someone is using the
Power of Attorney for Property to make decisions for you when you
are still capable of making them, or have recovered, you can ask
for a court hearing to review your situation.
Can
a Power of Attorney be Revoked After You Sign It?
As long as you
have capacity, you can revoke any Power of Attorney you have signed.
The procedure for doing so depends on the type of Power of Attorney
in question.
What
Are My Attorney's Responsibilities?
To act in your
best interests.
If you also give someone a power of attorney for personal care,
act consistently with that person's decisions (if those decisions
don't impair your finances).
Consult with you, and with those who take care of you, and with
your family and friends.
Use what you have, first, for your support and care; then if assets
are available, for the support of your dependants; then if assets
are available, for your other obligations.
If there is something left over, your attorney can make gifts or
loans to relatives, and gifts to charity based on your previous
practice and intentions (you can refer to this in your power of
attorney). Gifts to charity cannot be more than 20% of your income
unless your power of attorney says otherwise (and you can restrict
it to less than 20%).
Obtain a copy of your will and information about your assets and
liabilities (others who have this information have to provide it
to your attorney). If, in your Will, you give a particular asset,
for example a personal item or a particular property, to someone,
your attorney should not dispose of that item to raise the funds
to look after you, unless it is necessary to do so; and in that
case the person to whom you give the item in your Will is to receive
equivalent value from your estate.
Keep all accounts, and give an accounting when called on to do so:
- this includes lists of your assets as of the date of your attorney's
first transaction;
- of assets acquired and disposed of and the date and particulars
of each transaction;
- of all money receipts and disbursements and the date and particulars
of each transaction;
- of all investments bought and sold and the date and particulars
of each transaction;
- of all your liabilities as of the date of the attorney's first
transaction;
- of liabilities incurred and paid and the date and particulars
of each transaction;
- of all compensation taken by the attorney and how it is calculated.
Keep a copy of the continuing power of attorney and of any court
orders relating to the attorney's authority.
Not disclose any information in the accounts except to you and to
your attorney for personal care, if requested by you or such attorney.
Keep these records until she or he ceases acting for you and until
the attorney receives a release from someone authorized to give
it, or until another person acquires authority to manage your property
and your attorney gives the records to that person, or if you die,
until the attorney gives the records to your executor, or until
there is a court order.
How
much will my attorney cost or be paid?
In your Power
of Attorney for Property, you can state how much your attorney will
be paid. If you don't, if the attorney wants to be paid, the fees
will be prescribed by regulation. Currently fees are 2.5% on capital
and income receipts and on capital and income disbursements, and
2/5ths of 1% on the annual average value of the assets under management.
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