Learn More about the Law
Wills
and Estates
Question:
What is an Enduring Power of Attorney? Do I need one?
Answer:
An Enduring Power of Attorney is one which continues to give the person
you have appointed as your "attorney" power to act even in the
circumstance where you (because of a stroke, an accident or some other
incident or medical condition) have lost the power to make decisions for
yourself. In other words, it is a "full-blown" authority to
do anything that you could do, even when you reach the point where you
are unable to make the decision to do those things. Often, it is restricted
so that it can only be used when you have lost the ability to make the
decision for yourself. The "attorney" that is referred to in
a Power of Attorney is not (necessarily) a lawyer. It is any person to
whom you give the authority to carry out the duties under the instrument.
It may be a son, daughter, a spouse or a professional advisor.
The Power of Attorney is often designed so that it cannot be used unless you
have lost your ability to make the decisions for yourself because
we like to make our own decisions while we are able to do so, and many
of us do not want to lose our independence or have someone "in the
wings" who is able to take a decision regarding our affairs without
consulting with us.
The Enduring Power of Attorney is much more than the simple Power of
Attorney which one signs at the Bank to allow some relative to write cheques
on a chequing account in which we keep a small amount of money for the
purpose of paying bills. It enables our attorney to do anything that we
could do if we were in a position to make the decision ourselves: buy
and sell property, investments and the like; vote shares, purchase and
sell securities, etc.
In our practice, we do not encourage people to sign an Enduring Power
of Attorney unless it includes the condition that the power is not to
be used unless there has been certification by medical practitioners that,
because of illness or infirmity of mind, you are unable to make your own
decisions. Presented with such documentation from the medical caregivers,
we will release the Power of Attorney to the person named as "Attorney".
Without the direction to your lawyer to hold the Power of Attorney until
the presentation of medical certification, you risk losing control over
personal decision making and, possibly, property being disposed of without
proper consultation with you.
The creation of an Enduring Power of Attorney permits you to choose your
substitute decision-maker. This may be of considerable assistance in relieving
confusion between members of your family who would otherwise want to participate
(generally giving rise to conflict).
Obviously, you want your attorney to be a good money manager and a completely
honest person. There should be a provision in the Power of Attorney to
require your attorney to make a complete inventory of your assets on the
day they assume their job as attorney and later, when the power is at
an end, to give a full accounting for what has come in and out of your
asset portfolio during the time the attorney had control.
The lawyer who prepared the Power of Attorney considers that his or her
client is the person who is signing the Power of Attorney and not that
person's family members. The lawyer will want to be absolutely sure that
his or her client wants to have the Power of Attorney and that there has
been full and complete discussion of its effect. As the client, you need
proper advice as to how Powers of Attorney work, what authority you are
giving to the person named, the extent of that authority and how Powers
of Attorney might be abused by third parties if the document is not properly
prepared and executed, containing adequate protections.

Kentville, Nova Scotia, Canada
t. 902.678.2157 • f. 902.678.9455
 
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