Power of Attorney is the term used to refer to when an individual grants another person the legal authority to make financial and legal decisions and take action on their behalf. The Attorney under a Power of Attorney is under a high legal duty (“fiduciary duty”) to act in the interest of the individual.
It’s important to note that a Power of Attorney gives your attorney the authority to take care of only your financial and legal affairs, but not make decisions about your health care. This is covered under a Representation Agreement.
It is important to choose an individual as your Attorney with whom you have a close relationship of trust and respect.
General Power of Attorney
A general Power of Attorney can be used when an individual is unable to manage their affairs themselves, for example, when they are out of the country. If you do not specify an end date in your general Power of Attorney it ends when you become mentally incapable of making your own decisions. It’s important to note that a Power of Attorney is not a substitute for a will as it is only valid during your lifetime. As soon as you pass away, your designated Attorney loses their power for managing your assets, and the power passes to your Executor.
It’s important to note that a Power of Attorney gives your attorney the authority to take care of only your financial and legal affairs, but not make decisions about your health care. This is covered under a Representation Agreement.
Enduring Power of Attorney
Enduring Power of Attorney takes effect when an individual is no longer mentally capable of managing their own affairs and continues for the individual’s lifetime. An Enduring Power of Attorney can be prepared by a lawyer at any time as long as the individual is capable of giving instructions and is competent.
Power of Attorney is an important aspect of Elder Law as it usually, but not always, involves elderly individuals. Our Kelowna estate planning team can help navigate clients through several matters of elder law including the steps for designating a Power of Attorney, incapacity planning, committeeship appointments (i.e. adult guardianship when no enduring power of attorney or representation agreement exists), and advising committees and attorneys on their duties and obligations to incapacitated adults.