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    A Guide to Power of Attorney in Canada
    Posted: 2012-12-20 05:00:57


    What is a Power of Attorney?

    Power’s of Attorney are commonly used for authorizing someone else to carry out what you cannot do yourself. Such authority granted to another person can be for health and personal care or for property. Under the current law the Power of Attorney can also be enduring and can be effective even after one becomes mentally incapable.

    Since the Power of Attorney gives authority to another person to do what you can do yourself, including signing your name on a bank account, it has potential for misuse or fraud.

    Who should be appointed an Attorney?

    The choice of “Attorney” should be made with extreme care. It is preferable to appoint someone who is a close relative or friend and well trusted. One can appoint more than one person but is usually preferable to have the same person carry out the duties to minimize the complications. The person appointed for concerns of health could be different from the person appointed for property.

    Two types of Power of Attorney

    There are two types of powers of attorney. They are made under the Power of Attorney Act, and the Substitute Decisions Act, 1992. The first one deals with property and finances. This type of Power of Attorney is useful if you are not able to carry out some procedure such as a sale of property in another country or if you cannot move.

    The second type of Power of Attorney deals with your health and is helpful when you cannot mentally or physically make decisions on issues such as health care, accommodation, safety, nutrition, hygiene and clothing and even pulling the plug in your life support system.

    Continuing Power of Attorney

    If you want the Power of Attorney to continue when you are no longer able to make decisions, you should have a clause in the Power of Attorney that states that. Once you are disabled you cannot change the Power of Attorney. If there is a dispute as to whether you are disabled or not you can refer the matter to the government appointed person who can validate the Power of Attorney and confirm your ability or disability.

    It is possible to write a clause in the Power of Attorney which enables the Power of Attorney to come into effect only upon your becoming disabled. In such a case the Power of Attorney comes into effect only upon your commencing disability.

    What is an ‘Attorney’?

    Attorney does not refer to a lawyer. In the case of Power of Attorney it is a person you appoint to carry out your duties. It is important to seek permission from that person and advise him that he or she is being appointed to act as an attorney. The name of the lawyer where the Power of Attorney is prepared should be given to that person along with a copy of that Power of Attorney.

    Signing

    The legal requirement is that two persons witness and sign the Power of Attorney when the person making it is signing. The formality is similar to that of preparing a will. It is advisable to do this in the office of a lawyer who can explain the Power of Attorney and ensure that the signing is properly done. The lawyer will keep a copy of the Power of Attorney and he can also prepare a Notarized Copy if required.

    Age

    For the Property Type Power of Attorney the attorney must be at least 18 years of age, and for the Personal Care type the attorney can be 16 years or older. It is not advisable to appoint a very young person for the Power of Attorney. Trust worthiness and ability to exercise proper judgment in difficult situation is important for an attorney.

    Revocation

    The termination of Power of Attorney is not done as often as it should be. If there is not a question of enduring Power of Attorney for an older person, once the work is done by the attorney his Power of Attorney should be terminated. This is done with the same formality of two witnesses as the starting of the Power of Attorney. The termination should be brought to the attention of the original person you appointed as an attorney.

    Living Will

    Since a Power of Attorney give the person appointed as an attorney to carry out any sale or disposition of property, it is also referred to as a living will. It is not usual for the Power of Attorney to designate beneficiaries. This should be done by preparing a will. Power of Attorney is effective only during the life time of a person and the will takes effect upon the demise of the person.

    Mr. Jay Chauhan has more than 30 years of experience practicing Commercial law, Family law, Immigration law, Wills and Estates, and Litigation. Mr. Jay Chauhan earned degrees, including a Bachelor of Science from the London School of Economics in England; a Barrister-at-Law at Lincoln's Inn in England; a Master of Economics at the Berlin University in Germany; and a Bachelor of Laws at Osgoode Hall in Ontario, Canada. He was called to the Bar in Ontario in 1972, England in 1965, and admitted as an Advocate in the State of Gujarat, India in 1982. You can learn more about him by visiting his website at http://www.jaychauhan.com/

     

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