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Mar

26

Continuing Powers of Attorney – Part 1

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Continuing Powers of Attorney for Property / Finances

Please note that the information provided herein is not legal advice and is provided for educational purposes only.

Continuing powers of attorney – also referred to as enduring or durable powers of attorney – are legal documents that designate an individual (known as an attorney) to act on behalf of a person in the event that that person becomes disabled or incapacitated. So, in other words, it’s a power-giving document that allows the attorney to be able to make decisions on behalf of the incapacitated or disabled person. It is called “continuing” or “durable” because it can be used the person who gave it is no longer mentally capable.

There are power of attorneys over property and health care decisions. Typically, when you go to a lawyer’s office to draft your will, they will include power of attorneys as part of the last will and testament package.

Everyone should have a continuing power of attorney to make sure that their financial and health care affairs are in order and capable of being looked after when they become unable to look after those things themselves.

To have a valid power of attorney under the Ontario Substitutes Decision Act:

  1. The document itself must state that it is a continuing power of attorney or otherwise express the intention that the authority given may be exercised during the grantor’s incapacity to manage property.
  2. The document must authorize a person to be an attorney.
  3. The grantor (i.e. the person giving the power of attorney) must have capacity to give the continuing power of attorney (i.e. through knowledge, awareness, appreciation, etc.).
  4. A person with capacity is capable of revoking a continuing power of attorney.
  5. The document must be signed by two witnesses who are (among other things) not the grantor or attorney’s spouse or partner, a person less than 18 years old, or a child of the grantor (or somehone who the grantor has demonstrated a settled intention to treat as his or her child).

The power of attorney need not be in a set form or template.

A word or two on the requirement that the grantor must have sufficient capacity to grant the power of attorney. The grantor must be over the age of 18 and must be mentally capable as demonstrated by things like:

  • knowing what kind of property he or she has and it’s approximate value;
  • is aware of the obligations owed to his or her dependents;
  • knows that the attorney must account for his or her dealings with te person’s property;
  • knowing what authority is being granted to the attorney;
  • appreciates that the attorney’s mismanagement could result in a decline of the value of property; and
  • understanding the consequences of an attorney misusing their authority.

In the next blog, I’ll discuss the basic elements of a continuing power of attorney.

In case you were looking for a Continuing Power of Attorney legal form, look no further:

I’m pleased to announce that we have just released our latest software for 7 Canadian Provinces:

The Power of Attorney Wizard will allow users to make a custom-tailored .pdf Power of Attorney for property and financial matters. There’s nothing else like it on the Internet. It’s been in the works for many months and will be available for the following provinces:

  • Ontario
  • Alberta
  • British Columbia
  • Saskatchewan
  • Manitoba
  • New Brunswick
  • Nova Scotia

So what makes the Power of Attorney Wizard so great? A lot! It is the most advanced, comprehensive, and flexible software out there for making a Power of Attorney (including Enduring Powers of Attorney). The amount of detail that went into this software is truly amazing. Here are some highlights:

  • Very comprehensive (nothing else comes close)
  • Very flexible in terms of the options (again, nothing else comes close)
  • Based on provincial POA laws (unlike other kits)
  • Created by a Canadian lawyer (i.e. me)
  • Comes with free signing instructions
  • Comes with free edits for 90 days
  • Comes with free eBook about Powers of Attorney for your Province
  • It will be regularly updated (particularly when the laws change)
  • Affordable: only $57 + tax!

I’m very excited about the Power of Attorney Wizard. It will go hand in hand with Canada’s #1 Will-creation software: the Will-O-Matic, which is offered exclusively here on DynamicLegalForms.com. I’m sure the Power of Attorney Wizard will get as much fanfare from the public and the press as the Will-O-Matic has received in the short time that it has been around.

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