The Canadian Bar Association
Estates & Wills & Trusts

Everything you need to know about naming a POA

By Lisa Laredo

Two of the three most important documents every person should have are a Power of Attorney (POA) for Personal Care and a POA for Property (the third is a will). Yet, only about 30 per cent of Ontarians have these signed documents.

Forget about aging and the obvious potential need for someone to act on your behalf, what happens if you’re in a serious accident one day, are unable to make medical decisions while lying in the hospital bed and don’t have a POA? In Ontario, a family member has the right to make some of your health care decisions or apply to become your guardian of property — but this may not necessarily be the person you would choose. If no suitable person is available, able or willing, the government will act in your best interest.

If you’d rather not have the government or a random family member making important life decisions for you, then you need a POA for personal care and for property. Both are legal records that appoint a specific individual to act on your behalf and make both medical and financial decisions should you be unable to do so.

Who can I name as my POA?
You can name almost anyone you want to be your attorney, including a family member or a personal friend. And, you don’t need to name the same attorney for property as you do for personal care. However, it’s really important to think long and hard about your choice and that you choose a person you trust. You can also name a substitute attorney in case your appointed attorney is unable or unwilling to act on your behalf when the time comes.

Is there anyone who cannot be my POA?
Your attorney must be mentally capable of making decisions on your behalf and be 18 years or older.

How many attorneys should I name?
There is no limit as to how many attorneys you name, but if you name more than one person, all of your attorneys must agree on every single decision made on your behalf, unless you specifically state that they can make decisions severally instead of jointly.

While naming joint attorneys provides an extra level of protection, trouble arises if one person is unavailable to make a decision and the other (or others) cannot act without them. And, stating that decisions can be made severally creates conflict over who will act and who will make the decision.

Ideally, we recommend only one attorney be named (at a time).

Who decides if I’m mentally incapable of making health or property decisions to invoke my POA?
A capacity assessor — someone who is trained and specifically designated to determine whether you are mentally capable of making certain types of decisions — is the only one who can make such a determination. A capacity assessor is a health professional as defined by the regulations of the Substitute Decisions Act (for example, doctors, registered nurses, psychologists, registered social workers, occupational therapists).

Can a POA be challenged?
Yes, but only with legal assistance. No one can strip your designated attorney of their right to make decisions on your behalf unless a court decides that they can — yet one more reason to choose someone you really trust.

Can I revoke a POA?
As long as it hasn’t been invoked and you are mentally capable, you can cancel your
POA at any time and write and sign a new one.

* This article does not replace legal advice and is meant to be for information purposes only. Please consult us or any other legally trained professional when navigating the complexities around writing a POA.

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