Power of Attorney:
A power of attorney is a written document which grants someone power or authority in order to deal with both financial and estate matters. In essence , it allows someone other than you, to act within the same authority as you, in order to execute or look after both your financial and estate matters. Nonetheless, the power of attorney is capable of being either broad or restrictive in dealing with your matters. As a result, a power of attorney is depicted to be either ‘General’ or ‘Special’ in nature.
A General Power of Attorney will allow the agent to operate with very little restrictions. Thus, a general power of attorney is capable of running all financial affairs such as but not limited to ; Administering Bank accounts, paying bills and even selling your home. However, it should be noted that, you are unable to give your agent powers that you do not currently have or possess. Nonetheless, when requiring your agent to act for a specific purpose, they are granted a “Special Power of Attorney”. This allows for a limitation of their powers, to only do what is required or specified.
An agent or individual with a Power of Attorney is required to treat all information in confidence. This pertains to both financial and estate matters. Additionally, when an agent is granted a Power of Attorney, they are required to act within your best interests. In order to grant or receive a Power of Attorney, both the grantor and receiver must be 18 years of age. More so, both the grantor and receiver must be of sound mind and full mental capacity. This allows for the agent or receiver to have a full understanding of their obligations and responsibilities under this role.
An individual is bound by the decisions of their agent as long as they are acting in accordance to your instructions. However, if they exceed their limitations or go beyond there instructions, you would not be bound by their actions. When executing a Power of Attorney, it must be done in front of a witness. The witness is then required to sign an affidavit confirming that they understand the powers being granted.
Furthermore, a power of attorney is capable of ending in three ways;
- Letter revoking the Power of Attorney
- Loss of mental capacity
- Upon Death
In order for a Power of Attorney to continue following an impairment of your mental capacity, you must give your agent an Enduring Power of Attorney (EPA). In order to grant an EPA, it must be dated and signed by both the donor as well the witness.
Personal Directive:
Here in Alberta, we do not have Living Wills, rather we have Personal Directives. Personal Directive encompasses similar powers as that of a Power of Attorney. However, more often than not, a Personal Directive is granted when an individual suffers a serious injury or illness. A Personal Directive is a legal document which is made in case your decision making becomes impaired and you can no longer make your own personal decisions in the future. Granting a Personal Directive is up to the individual and remains completely optional and voluntary. However, it will only come into effect if you are found to have a lack of capacity.
Like the Powers of Attorney, individuals granted a Personal Directives have legal authority to make decisions on your behalf. A personal Directive is capable of being registered with the Office of the Public Guardian and Trustee (OPTG). It is recommended that a Personal Directive be registered, as it allows for people such as Healthcare workers to easily find and contact your agent.
Personal Directives often encompass a list of instructions about any or all personal matters that are not financial. This includes but is not limited to ; Medical treatments, education, employment, as well as residency. Failure to make a personal directive will allow the crown to decide your agent. By endorsing a Personal Directive, it defeats the purpose of having family or friends attend court or apply in order to become your guardian and make decisions on your behalf.
In order to terminate or discontinue a Personal Directive, one would undertake a capacity assessment which would result in either an affirmation or denial of your mental capacity.
