Estates & Wills & Trusts

One head is better than two when it comes to powers of attorney

By AdvocateDaily.com Staff

Individuals should avoid appointing joint powers of attorney whenever possible, Toronto trust and estate litigator Felice Kirsh tells AdvocateDaily.com.

Kirsh, a partner with Schnurr Kirsh Oelbaum Tator LLP, says that many people have powers of attorney (POA) for personal care and property prepared at the same time as a will.

And while it is fine to have different people taking on the two roles, Kirsh says she discourages clients from appointing more than one person to either position.

“I’m not a big fan of multiple attorneys because it can be very cumbersome,” she says.

Kirsh says joint attorneys are often appointed when a parent with more than one child wants to avoid the appearance of favouritism for one over the others.

“That’s understandable, but in my view, two attorneys should be the maximum. One is better, but three is not viable in my opinion,” she says. “It’s particularly true for personal care because you don’t want a situation where a nursing home has to make sure that instructions are coming from three different people.”

When picking an attorney for personal care, Kirsh says clients should select someone of a similar mindset when it comes to medical decisions.

“Sometimes people pick a person in the family with a medical background, such as a nurse or a doctor, but not everybody has someone like that available,” she says.

Kirsh says people tend not to discuss the details of powers of attorney with family members, preferring to keep them secret, along with the terms of the will.

“If you have special instructions that you want to be followed, then it’s best to consult with the person before the appointment,” she adds. “If it’s more standard, then people should at least tell the attorney about the appointment and where the original documents are.

“There is a reasonable chance a POA for personal care could be needed on an emergency basis, so it is useful for the attorney to know where the original power of attorney for personal care is being stored,” Kirsh adds.

When it comes to attorneys for property, Kirsh says the nature of the role means honesty is the critical characteristic for appointees.

“This person can access all your money and could take it. Unfortunately, some people do, so it has to be someone trustworthy and honest,” she says. “If you have a son who you know can’t manage his own money, then he is not the right person to be your power of attorney for property.”

Joint attorneys for property may be appropriate in cases where a client’s finances are exceptionally complicated, Kirsh adds.

Another practical matter Kirsh advises clients to consider for both types of attorney is the proximity of the person to be appointed.

“It doesn’t work to have either the attorney for property or personal care living hundreds of miles away in another province,” she says.

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