I recently met with sisters, Sue and Janice (not their real names), at my law office in the Kanata-Stittsville area of Ottawa. Their father had signed a Power of Attorney for Property and a Power of Attorney for Personal Care the previous year. Both documents appointed Sue and Janice to act jointly as their father’s attorneys or substitute decision-makers. Their father had recently suffered a stroke but was doing quite well and his prognosis was good. They weren’t sure if and when they should start acting under the power of attorney documents.
As I explained to Sue and Janice, many power of attorney documents intended to let someone (the ‘attorney’) look after financial matters (using a Power of Attorney for Property) do not have a condition requiring the grantor (the person who signed the power of attorney) to be mentally incapable. If such a condition does exist, it is usually stated in the Power of Attorney for Property document. As a result, if the attorney has the original, signed Power of Attorney for Property and there are no such conditions in the document, the attorney can use it.
Some banks have their own conditions that must also be met before the bank will recognize the attorney’s authority. For example, the bank will want to see the attorney’s ID and may require the document to be reviewed by the bank’s legal department which can take several weeks. Some banks may want to contact the lawyer who drafted the document to verify certain information.
I went on to explain to Sue and Janice that unlike a Power of Attorney for Property, a Power of Attorney for Personal Care can only be used if the grantor is incapable of a particular decision regarding health care, nutrition, shelter, clothing, hygiene or safety. The attorney for personal care may, for example, make a decision about which long term care residence the grantor will be moved into if the grantor is incapable of making that decision.
I confirmed to Sue and Janice that the attorney named in a Power of Attorney document must have the original, signed document in his or her possession. I also commended them for seeking legal advice before beginning to act under their father’s Power of Attorney documents.
Have you been named in a Power of Attorney document and aren’t sure if you should begin acting or how that works? If so, email email@example.com or call 613.836.9915 to make an appointment to meet with me. We will review your situation and advise you of your duties and responsibilities to ensure your role as attorney goes as smoothly as possible.
Donna Neff, JD, CS, T.E.P., is a lawyer, a Certified Specialist in Estates and Trusts Law, and a member of the Society of Trust and Estate Practitioners. Donna has been practising in this area of the law since 1996. Her firm, Neff Law Office Professional Corporation, is an Ottawa-based boutique law firm specializing in wills, powers of attorney, trusts, including Henson Trusts, estates, and adult guardianship among other matters. Reproduction of this blog is permitted if the author is credited.
If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.