Powers of Attorney

Why do you need a Power of Attorney?

A "Power of Attorney" is a document in which the person who signs it, called the "grantor", delegates responsibility to look after their personal care or property to a named person called the "attorney". Usually the attorney is a close and trusted friend or relative. By signing a Power of Attorney document while capable, the grantor is able to have his or her choice as to who may act as an attorney on his or her behalf should they become incapable or unavailable when important decisions must be made or actions taken on a timely basis. Should there not be a Power of Attorney document at the time that an individual loses capacity, the process of putting in place a substitute decision maker is complicated, time-consuming and costly.

Continuing Power of Attorney for Property

A Continuing Power of Attorney for Property document becomes valid as soon as it is signed, even though most people only intend for it to be used in situations where they become incapable of managing their own affairs. Great caution must be exercised to ensure that any limitations, regarding types of property to be managed or a specific event which triggers the use of the attorney, are expressed clearly to prevent any ambiguity. If the meaning of the condition is uncertain, third parties may not recognize the authority of the attorney to act.

Care must be taken to ensure that the document is not easily accessible for potential misuse. For this reason, when lawyers prepare the document for their clients, they often will keep custody of it along with an "escrow letter" that instructs the law firm as to when it should be released to the named attorney.

What is a medical directive?

Medical directive statements are legal documents that allow you to make decisions about your health care in case you are not able to do so at that time. While a person has the right to make their own health care decisions, in some situations they may not have the ability to understand their options or communicate their desires. A medical directive does not take effect upon creation of the document. Rather, it only takes effect after two doctors have conducted an examination on the person in question and have declared him or her unable to understand or communicate. For this reason, it is recommended that people complete a medical directive statement in advance of a medical emergency.

The two most commonly used medical directive statements are living wills and Powers of Attorney for Personal Care.

Power of Attorney for Personal Care

A Power of Attorney for Personal Care document allows the named attorney to make decisions concerning the donor's health care, nutrition, shelter, clothing, hygiene and safety. Such appointment only becomes effective if the donor loses mental capacity. Consequently, it may be advisable not to impose a date when the document is to become effective unless it is used to control the method used to determine incapacity.

What is a "living will"?

A "living will" or an "advance directive" is sometimes used to refer to a document that details what you want to have happen if you become ill and cannot communicate your wishes about medical treatment. It is quite common, for example, for people to write a "living will" indicating that they do not want to be kept alive through artificial measures if they have no hope of recovery. "Living will" provisions may also be added to a power of attorney for personal care so that you can be sure your attorney is aware of them.