Faq’s Power Of Attorney & Living Wills

What is a Power of Attorney?

A Power of Attorney is a legal document that gives someone else the right to act on your behalf.

Are there different kinds of Power of Attorney?

Yes. 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. The definitions are provided below under the topic headings.

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”. To find out more about living wills and related matters you may wish to contact at our office.

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.

Do I have to register my Power of Attorney or living will with the government?

No. There is no requirement that these documents be registered. The government does not keep a registry. It makes sense, however, to make sure that the people in your life who need to know about these documents – especially your attorney – have a copy or know where to get one if needed.

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.

If I don’t make a Power of Attorney or a living will, will the government automatically step in if I can’t manage my own affairs?

No. In these circumstances a family member has the right to make your health care decisions or apply to become your “guardian” of property. Alternatively, someone else – such as a close friend – could apply to act for you in these matters. The government, through the Office of the Public Guardian and Trustee (OPGT), acts only in situations where no other suitable person is available, able and willing. For more information about applications for guardianship please contact one of lawyers at our office.

If there is more than one Power of Attorney, which one is valid?

Only the most recent Power of Attorney is valid unless you state, in that document, that you intend to have more than one Attorney.

Can a Power of Attorney be challenged?

Yes, but only a court has the final say.