PREPARING YOUR POWER OF ATTORNEY – TIPS
An Enduring Power of Attorney (EPA) appoints one or more individuals to act as your “Attorney” with the power to make financial decisions on your behalf, should you become incapable of making them yourself. This person need not be an actual lawyer (usually is not), but is called an Attorney in your EPA because he or she has the legal power to conduct your financial affairs in your absence.
This person is typically a spouse, friend, or other family member whom you trust to make important financial decisions on your behalf. There are different types of EPAs, but they all typically apply to all your financial matters, giving your Attorney unlimited power to transact your financial affairs in your absence. You can, of course, restrict the powers of your Attorney in your EPA as you see fit.
Choosing an Attorney
Choosing someone to act as your Attorney in an EPA should be done carefully. Obviously, you should select someone you trust, but this person should also be able to handle your finances in the same way you would. Additionally, the person you select must agree to act as your Attorney, and must be capable of handling the task. That means talking with your proposed Attorney about the EPA beforehand, ensuring that he or she is both able and willing to handle the hefty responsibility of taking care of your finances, if you are unable to do so.
We recommend that you appoint a primary Attorney, and at least one or more alternate Attorneys, in the event your primary Attorney predeceases you or is unable or unwilling for whatever reason to act in that capacity. You may also appoint “Joint Attorneys” with power to act either together in all things, or singly and individually – as you see fit. Once you’ve named an Attorney, that person may choose to renounce his or her appointment at any time, so long as this is done before the EPA comes into effect.
When reviewing your EPA (should be done periodically, along with reviewing your will) take time to consider whether the person or institution you’ve appointed is still the best choice for your needs.
Coming Into Effect
There are several different ways in which your EPA may come into effect, and we urge you to consider which of these options is best for you:
- Springing – when you become mentally or physically incapacitated.
- Springing – upon a specific date that you decide in writing, or when you become mentally or physically incapacitated (whichever comes first).
In your EPA, you may decide how you want your incapacity to be determined. This is typically done by one or more of these options, often in combination:
- Your spouse or partner;
- Appointed Attorney, if other than your spouse or partner;
- Medically certified by one physician;
- Medically certified by two physicians;
- Appointed Attorney, plus medically certified by one or more physicians; or
- Other – if none of the above applies.
Powers of Your Attorney
A typical EPA usually includes the following general description of your Attorney’s powers:
- My Attorney has authority to do anything on my behalf that I may lawfully do by an attorney. This includes the ability to maintain, educate, benefit and advance myself, my spouse or partner and my dependent children. This also includes the power to sell, purchase, refinance, or deal with any Real Property or business that I own, in whole or in part, and to sign all instruments on my behalf concerning land or property capable of registration under the Land Titles Act, the Real Property Act, or the Registry Act in every province of Canada, and in any foreign jurisdiction.
- My Attorney has authority to delegate any of the powers given by this Power of Attorney.
- My Attorney has authority to exercise his or her powers to protect my interests in matters relating to all or part of my Estate.
A typical EPA usually includes the following general description of your Attorney’s restrictions:
- My Attorney may use my property only for my benefit and the benefit of my spouse or partner and my dependent children.
- This Enduring Power of Attorney terminates if I revoke it in writing at a time when I am mentally capable of understanding the nature and effect of the revocation.
Attorneys are entitled to fair compensation for their services (up to 5% of your Estate assets), though they have the right to decline it, and you have the right not to include it. Though not mandatory, we recommend including in your EPA whether or not compensation is to be paid – and if so, the amount. This amount can also be determined by the courts under the Trustee Act, if you so prefer not to select an amount yourself, but it does involve a costly application to the court. Your Attorney is also entitled to all out-of-pocket expenses associated with his or her service as your Attorney under an EPA.
Peace of Mind for You and Your Family
No one likes to think about it, but the reality is: things happen. Should you become incapable of making financial decisions due to illness or accident, you will have peace of mind knowing your family can access accounts and manage your financial affairs easily and responsibly. In your EPA, you can appoint a trusted person to handle your affairs in the unfortunate event you are unable to do so.
Your lawyer can work with you to customize an EPA that suits your needs. You can choose what you do and do not wish your Attorney to have power over, since your Attorney is only allowed to act to protect your assets for the benefit of yourself, your spouse, and your dependent children.
Without a Power of Attorney in Place …
Should you become mentally or physically incapacitated without a Power of Attorney in place:
- Your spouse or other family members may have to hire a lawyer to get a guardianship order from the court – expensive and time-consuming.
- A court may appoint someone you don’t trust to make financial decisions on your behalf.
- Your estate or business may be adversely affected in the time it takes to resolve this through the courts.
Additional Information about Enduring Powers of Attorney
- There are essentially two types of EPAs. One takes effect immediately after it is signed, and the other does not take effect at all until you become mentally or otherwise incapacitated.
- Having a Power of Attorney does not necessarily mean that you have an Enduring Power of Attorney. This is something important to discuss with your lawyer prior to making either document.
- An EPA does not necessarily come into effect only upon your mental incapacity. Again, be sure to discuss your particular needs with your lawyer.
- If your needs change, your particular legal arrangements may also need to be changed to ensure you are protected.
- Your lawyer will help you create an EPA that meets your needs – particularly if you require special provisions to be included.
- You can revoke your EPA at any time, as long as you are mentally capable of doing so.
- Your EPA is no longer in effect after your death.
Please feel free to contact us if you have any questions that aren’t answered on our site, or to schedule an appointment. We’re always happy to chat with you about any of your legal needs.
- Phone: (587) 272-2050
- E-mail: email@example.com