A guide to help you prepare and understand the effect of your Enduring Power of Attorney
December 27, 2018
Your Enduring Power of Attorney continues during your lifetime and the authority granted under it is not terminated by your lack of mental capacity in the future, unless you have revoked it while you have had the capacity to understand the nature and effect of your Enduring Power of Attorney and the effect of terminating your Enduring Power of Attorney.
Unless you have specified that your Enduring Power of Attorney is to come into effect on a certain date or on the occurrence of a specified contingency, it will come into effect as soon as it is signed and witnessed. If you have specified that your Enduring Power of Attorney is to come into effect on the occurrence of a specified contingency, you may name one or more adults to declare that the contingency has occurred. If the contingency you have specified is your lack of capacity and you have not named anyone to make this declaration, two heath care professional may be asked to make the declaration.
In your Enduring Power of Attorney you are called the “grantor”, as you are giving decision-making authority to another person under the Enduring Power of Attorney.
You must be 18 years of age or older to make an Enduring Power of Attorney.
You may use an Enduring Power of Attorney to appoint a personal attorney, a property attorney, or both a personal and a property attorney. You may appointment the same person as a personal and property attorney or you may appoint different people to fulfil each role.
The effect of your Enduring Power of Attorney is to authorize the person you have named, your “attorney”, to act on your behalf with respect to your personal affairs or property and financial affairs or both.
Unless you state otherwise in your Enduring Power of Attorney appointing a personal attorney, he or she will have the authority to make decisions respecting such matters as where you will live, any training or education you will receive and any social activities in which you will take part.
Your personal attorney may not make health care decisions on your behalf. The Health Care Directives and Substitute Health Care Decision Makers Act allows you to set out your health care decisions in a health care directive or to appoint a proxy to make health care decision on your behalf.
Unless you state otherwise in your Enduring Power of Attorney appointing a property attorney, he or she will have the authority to make decisions respecting any lands, houses, bank accounts, stocks, bonds, mutual fund investments, vehicles and anything else that you may own. This authority will also extend to matters relating to all securities, contracts of insurance, pensions, non-testamentary trusts, retirement savings plans and registered retirement income funds, annuities and other like deposits and investments. Your property attorney will also be able to use your property to provide support for your spouse and dependent children.
Housing decisions requiring the expenditure of money may be seen as both personal and financial decisions. If you appoint different people to act as your personal and property attorneys, you should be clear in your Enduring Power of Attorney which attorney is being given this authority.
Your attorney should be someone you know and trust completely and who is very capable of handling your affairs. You should consider very carefully whether you wish to impose any restrictions on the powers of your attorney, especially your property attorney. Your property attorney could seriously deplete or eliminate your financial assets.
There are certain conditions that the person you name as your attorney must meet at the time he or she begins acting as your attorney. He or she must be 18 years of age or older and have capacity. He or she must not be in the business of providing personal or health care services, such as home care or nursing home services, to you. In the case of your property attorney, he or she must not been an undischarged bankrupt.
Another important condition that your attorney must meet at the time he or she begins acting as your attorney is that he or she must not have been convicted within the last 10 years of a criminal offence relating to an act of violence, theft or fraud. However, your attorney may act if he or she has been pardoned for the offence or if, while you had capacity, he or she disclosed the fact of the conviction to you and you consented in writing to the person acting as your attorney.
It is desirable that your attorney is informed about his or her appointment and accepts the responsibility given to him or her.
Your Enduring Power of Attorney must be witnessed by a lawyer or by two adult witnesses. These two adults may not include the attorney, a member of his or her family or a member of your family.
You may revoke your Enduring Power in writing at any time, as long as you have the capacity to understand the nature and effect of your Enduring Power of Attorney and the effect of terminating your Enduring Power of Attorney.
Your attorney’s authority will come to an end on your death, on the death, lack of capacity or written resignation of your attorney, on the court appointing a property guardian for you or on your attorney ceasing to meet the requirements noted above in items 12 and 13. It will also come to an end on the date specified in your Enduring Power of Attorney or on your written revocation while you have capacity. If your attorney is your spouse, his or her authority will come to an end if your spousal relationship ends. A court may terminate the authority of an attorney who abuses his or her authority.
You may name a person who may request an accounting from your attorney. That person will then be able to ensure that your attorney is properly handling your affairs. If you do not name such a person, one of your adult family members may request such an accounting.
