Disability planning, making sure there is a strategy in place should you ever become unable to manage your affairs, is important.
We all know that. However, it is uncomfortable to think about and therefore it is easy to put it off.
A key part of disability planning is the assignment of a power of attorney (a legal document that gives another person the right to act on your behalf), but it’s also the biggest hurdle. Putting more thought into who you choose and what powers will be granted to them can give you the peace of mind to complete your plan with confidence.
Choose your lawyer
It is essential to choose someone you trust to assign the power of attorney. Acting as your attorney involves important duties and obligations. Your attorney’s primary duty is to act with honesty, integrity, and good faith on your behalf if you become incapacitated.
The law establishes specific obligations for the person chosen to exercise their power of attorney. Among other things, they:
- explain their powers and duties to the incompetent person
- encourage the incapable person, to the best of their ability, to participate in decisions relating to their property
- encourage regular personal contact between the disabled person and supportive family and friends, and
- keep track of all transactions involving the grantor’s property.
The attorney or attorneys you choose to act on your behalf must be aware of these rules as well as other rules set forth in the law.
For example, they are expected to make sure you have a will and, if so, know its provisions. The main reason for this is that your attorney should not sell or transfer assets that are subject to a specific gift in the will, unless necessary.
The law also contains explicit instructions regarding required and optional expenses. Examples of the latter include charitable donations where similar expenses were incurred by an incapacitated person when able and provided sufficient assets were available. Your attorney should also be familiar with the rules that govern how or when you can resign, what compensation you may be entitled to, and the level of care that is expected of him.
Safeguarding your heritage
You can also incorporate a second opinion directly into your power of attorney documents by naming more than one person. If you name two or more people, they must act unanimously unless the document indicates otherwise.
A joint appointment provides a level of protection in that the appointed attorneys must agree to all actions, while a “joint and several” appointment provides flexibility, allowing any attorney to conduct business independently.
Many people choose to supplement the same people or trust companies to be both their attorneys-in-fact and their executors. Although you don’t have to, the same list of key traits—experience, availability, responsibility, and reliability—applies to both roles.
It is also possible to limit the powers granted to your lawyer. If you want your attorney to act only during a specific period of time (perhaps a vacation or hospital stay) or with respect to a specific transaction (the closing of a real estate deal), it is worth considering a power of attorney. limited or specific. .
In the case of a general continuing power of attorney, many people want the document to be used only if they become unable to manage their affairs on their own.
While the document is effective when signed, it is possible to include provisions in the document itself that postpone it to a future date or the occurrence of a specific condition (for example, the grantor has a stroke). These are sometimes called “spring” powers of attorney.
However you prepare your power of attorney documents, careful consideration of whom you choose, as well as taking advantage of available safeguards, will help ensure your confidence in your disability plan.
Common mistakes to avoid
- Make a quick decision: Many people name their PoA without thinking about the financial strength of their choice, let alone their ability to get along with other family members.
- Assuming that family is always the best option: It is much more important to choose someone who truly has their client’s best interests in mind.
- Waiting too long: If there is already an issue of diminishing capacity, it is probably too late to make a power of attorney.
- Not revising it: Changing life circumstances and new provincial legislation can invalidate a previous PoA.
Disability Plan
Your estate plan doesn’t end with an updated will. He must also foresee possible future disabilities, which usually means preparing powers for both property and personal care.
A power of attorney, a legal document that gives another person the right to act on your behalf, has two main types: one for property management and one for personal care.
Will and estate planners generally advise preparing both types of powers of attorney. Although they are often prepared at the same time as your will, they can be created at any time.
personal care
With a power of attorney for personal care, you can authorize someone to make decisions about your personal care if you are unable to make them yourself.
You can grant a power of attorney for personal care if you are at least 16 years old, have “the ability to understand whether the proposed attorney has a genuine concern” for your welfare, and can appreciate that the attorney may need to make decisions.
Personal care includes decisions related to health care, nutrition, housing, clothing, hygiene, and safety.
Property
A continuing power of attorney for property authorizes someone to do anything with respect to your property that you could do if you could, except make a will.
The law says that you are capable of power of attorney for property if you are at least 18 years old, know what type of property you own, along with its approximate value, and are aware of any obligations you have to your dependents. .
The term “continuing” (sometimes called “enduring”) refers to a power of attorney that can be exercised during the grantor’s later inability to manage the property. Make sure the document states that you want the power of attorney to be used only if you become incapable.
what you need to know
A continuing power of attorney for property is a powerful document. Unless otherwise stated in the document, it is effective when signed, giving considerable power.
In fact, the law explicitly requires you to acknowledge that this authority can be misused. And, as part of the ability test to grant a continuing power of attorney, you must also recognize that the property you own may lose value if not managed properly.
A financial institution, title office, or other third party presented with a continuing power of attorney for property with the restriction “effective only upon incapacity of grantor” will want proof of incapacity.
That evidence could be hard to come by. One solution is to set out the terms of use in a separate document and have all original copies of the power of attorney held by a trusted third party. You could, for example, order the document to be published only if:
- He tells the lawyer that he wants him to start acting;
- You are declared legally incapable of managing your property;
- One or more physicians advise that you would benefit from assistance in managing your affairs; Prayed
- Certain members of the family advise that the lawyer begin to act.
No direction could be expensive
If you do not prepare the power of attorney documents, an application may be taken to court before someone can be appointed to make decisions for you. That can leave you struggling when you’re not physically fit. Having a will doesn’t help because an executor is only authorized to act after the executor’s death.
On top of that, short processes can be expensive and time consuming. Depending on the circumstances, the public guardian and trustee may need to be involved.
You also lose the opportunity to complement people or companies of your choice and you cannot set parameters regarding the actions of your surrogates in decision making.