A Power of Attorney is a legal document that gives someone else the right to act on your behalf. The term “attorney” refers to the person or persons you have chosen to act on
your behalf.
Many people believe their families will be able to step in if something happens and they cannot make decisions for themselves. This isn’t always true. You can name someone to make financial decisions for you, such as paying your bills, with a continuing power of attorney for property.
For personal care and health decisions such as where you live, what you eat or what medical care you will receive if you get sick or injured, you can name someone in a power of attorney for personal care.
No one can make you sign a power of attorney if you don’t want to. But, if you don’t choose one, the government may have to appoint someone to make certain decisions for you. It’s better if you choose someone you feel you can really trust, who knows your wishes.
In Ontario there are three kinds of Power of Attorney:
A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to act for you even if you become mentally incapable.
A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.
A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care.
What does the term “mentally incapable” mean?
It means different things for different types of decisions and actions. For example, the level of mental capacity a person needs in order to make a valid power of attorney is different from the capacity needed to make personal care or financial decisions.
What is a “living will”?
The expression “living will” is sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment. It is quite common, for example, for people to write a “living will” saying that they do not want to be kept alive on artificial life supports if they have no hope of recovery. The term “advance directive” is also frequently used to refer to such a document. Some people use the phrase “proxy directive” to describe a document that combines a Power of Attorney and a “living will”.
Is a “living will” the same thing as a “Power of Attorney”?
No. A Power of Attorney is a legal document in which you name a specific person to act on your behalf. You can, however, write your treatment wishes (your “living will” or “advance directive”) as part of your Power of Attorney document so that you can be sure your attorney is aware of them. A “living will” just addresses your treatment and personal care wishes and does not need to name anyone or be written in any specific way.
Is a Power of Attorney or “living will” the same thing as a “Last Will and Testament”?
No. Your Last Will and Testament covers the distribution of your property after you die and only takes effect upon your death. A Power of Attorney and a “living will” only apply while you are alive and cease to be effective upon your death.
Is a Power of Attorney or “living will” effective outside of Ontario?
It depends on the law of the particular place where you want to use the Power of Attorney. If you are going to move, or be out of the province for some time, you may want to check with a local lawyer to see if you need to make new documents.