Additional Protection
A Will is not the only legal document you need.
For protection during your lifetime, also consider the benefits of having a Living Will and Power of Attorney (POA)/Mandate†. A Living Will allows you to maintain control over your own health care decisions, even when you can't make them. A Power of Attorney gives the individual(s) you name the authority to manage your financial affairs and other matters.
Living Wills
If you live in Manitoba, Ontario, Quebec or Nova Scotia, you can create a Living Will. (Depending on where you live in Canada, a Living Will may also be referred to as a Power of Attorney for Personal Care, a Mandate, an Advance Health Care Directive or Proxy, an Advance Directive, or a Representation Agreement.)
A Living Will provides instructions regarding your medical care if you were to become ill or incapacitated and unable to state your wishes. Through a Living Will, you may indicate types of treatment you do or do not want to receive. You may also appoint someone to make your health care decisions if you are unable to make them.
Most families are grateful for a Living Will, particularly when they are faced with end-of-life choices. A Living Will can help your family make the best of a difficult situation because you will have chosen one or more people whose judgment you trust to make your health care decisions. You will have also given them some guidance about those decisions.
You should create your Living Will with the assistance of a lawyer (or notary in Quebec). You should also discuss it with your family members and physician.
Power of Attorney/Mandate
If you're like many people, you may believe that if you were to become mentally or physically incompetent due to illness or accident, your spouse or partner could simply act on your behalf. This is not true. Without a court order or a general Enduring Power of Attorney, your family members could not manage your financial affairs. Your spouse wouldn't even be able to access your financial accounts unless these were held jointly.
An Enduring Power of Attorney, also called a "Continuing" or "Durable" Power of Attorney in some provinces/territories, and a "Mandate Given in Anticipation of Incapacity" in Quebec) can solve the problem. It gives the individual(s) you name the authority to manage your affairs. It can be broad reaching in scope—covering all the things you would normally do—or it can be narrow (limited to bank accounts or investments only, for example).
You can also create a simple Power of Attorney/Mandate for a limited time, such as when you are away from home and require certain matters to be handled on your behalf. Other possibilities include an Enduring Power of Attorney that is narrower in scope (limited to bank accounts or investments only, for example) or Powers of Attorney for assets in different jurisdictions. It is very important for all these documents to be structured so that they "work together" so legal advice in their preparation is key.
Who to appoint as Power of Attorney/Mandate
You can appoint an adult child, spouse, good friend, trust company or another family member as your Power of Attorney. You can also appoint two or more individuals and specify whether they need to act together (jointly) or if they can act together and separately (jointly and severally).
As with your Will, you should seek the help of a lawyer (or notary in Quebec) to create your Power of Attorney/Mandate to ensure it reflects your wishes and is legally effective.
What can happen without a Power of Attorney/Mandate
If you were to suddenly become incapacitated, by a stroke for example, and you did not have a Power of Attorney/Mandate, your family would have to apply to the provincial government or courts to have someone appointed to manage your affairs. This could be an expensive and lengthy process, often taking weeks or even months.
Simply put, a Power of Attorney/Mandate can help make the best of a difficult situation and is essential to your estate plan.
Types of Power of Attorney
- Limited and General Power of Attorney
The authority that you give the individual acting as your "attorney" (or "mandatory" in Quebec) can be either limited to specific activities or assets, called a "Limited Power of Attorney," or can provide the attorney with wide-ranging control of your financial affairs, called a "General Power of Attorney."
A Power of Attorney may be temporary or of indefinite duration, but in all cases the authority provided by this document ends upon your death or incapacity, unless it is an "Enduring Power of Attorney" or "Mandate Given in Anticipation of Incapacity" homologated by the court (in Quebec). The appointment of a committee or guardian by a court order will also terminate a Power of Attorney. These appointments end on death.
- Enduring Power of Attorney
As noted above, a Power of Attorney document (general or limited) will not be valid if you become mentally incapacitated unless it states that the attorney's authority is to be maintained under this circumstance. Therefore, additional wording is needed to ensure the document is considered an "Enduring Power of Attorney" despite your subsequent mental incapacity.
Additional information for residents of Quebec and British Columbia
- For Quebec residents: If you become incapacitated, your mandatory must apply to the court to confirm their continuing authority to act for you.
- For British Columbia residents: You may create a Representation Agreement that allows you to appoint representatives on your behalf. If you should lose mental capacity, your representatives will have the authority to make decisions about your legal affairs, financial matters, personal care and health care needs, if necessary.
The Representation Agreement is an additional document that can be used alone or in conjunction with an Enduring Power of Attorney.
Please keep in mind that this information on Wills is in no way complete. It is simply an overview and does not deal with many of the legal issues involved in creating a Will. This content does not replace the need to contact your professional advisors, such as your lawyer, notary or other qualified advisor.
†In Quebec, the Power of Attorney is called a "Mandate." The term "mandatory" is used in place of "attorney" and the "mandatory" is equivalent to "donor."
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