What is a Power of Attorney - and Why Do You Need One?

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What is a power of attorney?

A power of attorney is a legal document that gives someone else - your “attorney” - the power to act on your behalf. Generally, there are three kinds of powers of attorney - a power of attorney for personal care, a continuing power of attorney for property and a non-continuing power of attorney for property.

Power of attorney for personal care

A power of attorney for personal care lets your attorney make personal care decisions on your behalf if you become mentally incapable of making them for yourself.  Your attorney becomes your substitute decision-maker for making personal care and medical decisions, such as whether you will receive or decline certain medical treatments. A power of attorney for personal care ensures that a person you trust is making important decisions about your care, and will also help to make sure that your personal care wishes are respected.

Power of attorney for property

A continuing power of attorney for property lets your attorney manage your financial affairs and allows the person you name to act for you even if you become mentally incapable. This includes managing your bank accounts, making bill and rent payments and making purchases on your behalf. A continuing power of attorney for property means that a person you trust will be able to oversee your finances when you are unable to.

Why do I need a power of attorney?

A power of attorney is a very important document. It’s the easiest way to ensure that your directives for your property and health care are followed, and that decisions in your best interest are made.

If you are incapacitated and do not have a power of attorney, your family may have a very difficult time taking care of your property and finances and making medical decisions on your behalf. They may need to seek legal advice, or take additional legal action to be able to make decisions on your behalf. This can become extremely complicated and costly.

Creating powers of attorney is a very easy and simple way to start planning for the more difficult what-ifs in life, and will give you piece of mind knowing that someone you trust will be able to take care of your personal care and finances when you are not able to.

When should I start planning my power of attorney?

Right now. The best time to prepare a power of attorney is when you don’t need one - that is, when you are in good health and not experiencing a health crisis.

For many of us, ourselves included, talking about, let alone planning for, some of the more difficult stuff in life - what happens to us when we get sick or otherwise become unable to care for ourselves - is very hard. Maybe we feel that we have lots of time to figure that out, or perhaps there is a bit of denial that we will ever need to deal with a situation like that.  Maybe it’s just not something we want to think about.

Do yourself and your family a favour: don’t wait. It’s never to early to plan for the what-ifs in life.

How do I create a power of attorney?

In Ontario, the Ministry of the Attorney General has created a free, very simple, easy to use power of attorney kit that contains templates for both a power of attorney for personal care and a continuing power of attorney for property. This power of attorney kit works for most people in Ontario. However, if you have questions about a power of attorney, or you would like to make more complex instructions for your power of attorney, we strongly suggest that you speak with a lawyer.

For your power of attorney to be legally valid, you must sign it in the presence of two witnesses. The witnesses must also sign the power of attorney. The witnesses can’t be the attorney or their spouse or partner; your spouse, partner, or child, or someone that you treats as your child; a person whose property is under guardianship or who has a guardian of the person; or a person under the age of 18.

Does my power of attorney need to be notarized?

When a document is notarized, a notary verifies that the signature on the document is real, and then signs and seals the document with their notary stamp.

It is not a legal requirement for your power of attorney to be notarized, but there are very good reasons to get it notarized anyway.

First, notarizing your power of attorney assures others that the signature on the document is genuine and the documents are legitimate. This makes it less likely that the validity of your power of attorney will be questioned.

Secondly, many financial institutions, like banks, will not accept powers of attorney for property unless they are notarized. If you’re not sure what your bank’s requirements are, we suggest that you contact them for more information.

Can Downtown Notary help me with my power of attorney?

Downtown Notary can definitely assist you with notarizing your power of attorney. We can even arrange for an additional witness if needed. Contact us for more information on how we can help you with your power of attorney. Ready to get started? Book your appointment now.

Downtown Notary does not draft powers of attorney. If you need assistance with writing a power of attorney, we strongly suggest that you speak with a lawyer.

Where can I get more information?

This is a very high level overview of powers of attorney. For more detailed information, we suggest you read the Ministry of Attorney General’s page, How Powers of Attorney Work

This blog post does not in any way constitute legal advice and is not a substitute for speaking to a lawyer. You may wish to speak to a lawyer regarding any specific questions you may have about powers of attorney.

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