It’s Buyer Beware when trying to make your own Power of Attorney!
Full Disclosure: I’m a Toronto lawyer. I’m also the founder / president of Dynamic Legal Forms Ltd., which offers the Power of Attorney Wizard. The Power of Attorney Wizard allows individual to create their own custom-tailored power of attorney for property / finances (available for 7 Canadian provinces) or power of attorney for personal care (currently available for Ontario). This goes hand in hand with our proprietary Will-O-Matic system. The Will-O-Matic is also available in Australia and the UK.
Now, I’m not here to tell you about the Power of Attorney Wizard and what makes it so great. No, I’m here to tell you what’s wrong with other do-it-yourself Power of Attorney Kits. These Power of Attorney kits are becoming quite popular these days. You can find them in Staples or Amazon.ca, online (just do a Google Search), and even on Group buying websites like Groupon. But are they any good? Well, the truth is: not necessarily…
Lets review some of the deficiencies I found with these products, shall we?
A power of attorney is not the same thing as a “personal directive” (Alberta), “representation agreement” (British Columbia), “health care directive” (Manitoba), “living will” (New Brunswick), or “personal mandate” (Quebec”). But I’ve found MOST do-it-yourself Power of Attorney kits call the document that they are offering a “Power of Attorney” or “Enduring Power of Attorney” or “Continuing Power of Attorney”. So why are they wrong?
Well, in most Canadian provinces, a document that allows you to name someone to make decisions about your property / finances when you are unable to do so (or out of the country, or unavailable, etc.) is called a “Power of Attorney for Property / Finances“. The word “Enduring” in many provinces or “Continuing” in Ontario that appears in front of the word “Power of Attorney for Property / Finances” mean that the Power of Attorney takes effect or continues to stay in effect after you have lost your mental capacity. And powers of attorney for property / finances FOR THE MOST PART are very similar from one province to the next. Sure there are some nuances (e.g. in B.C. and Manitoba which have specific witness requirements), but the laws governing these documents are very similar. Are you with me so far?
Now, in some provinces, there is another document that you can create called a “Power of Attorney for Personal Care“. This allows you to name someone to make personal care decisions on your behalf when you are unable to do so. That’s the case in Ontario, for example. And this is where things get confusing. Many provinces (not Ontario though) have introduced laws that allow you to name someone to make personal care decisions – including final wishes concerning your medical treatment – when you are no longer able to communicate and have lost your mental capacity. These laws differ from one province to the next. These documents may be called “personal directives”, “living wills”, “health care directives”, “advance health care directives”, “representation agreements”, “powers of attorney for personal care”, or “personal mandates”. Importantly, these documents have specific requirements that must be met to be valid in their respective province.
So here’s the real shocker: when I take a look at so-called “Powers of Attorney” for “Canada”, it’s a one-size fits all solution. There’s NO DISTINCTION from one provinces to the next. The nuances of provincial laws are ignored or disregarded. And this simply won’t do!
Let’s take a look at a simple situation, shall we? In British Columbia, if you want to create a Power of Attorney or Enduring Power of Attorney to deal with an interest in land, then, pursuant to the Land Title Act, R.S.B.C. 1996, c 25, a lawyer or Notary Public in the province of British Columbia is required to act as your witness. If your Enduring Power of Attorney does not deal with an interest in land, you are not required to have a lawyer involved in preparing, signing, notarizing, etc. your Enduring Power of Attorney for it to be valid. OK, so guess how many do-it-yourself Power of Attorney kits I’ve seen that includes this information to help you ensure that your Power of Attorney can legally deal with an interest in land? You guessed it: none. This is frankly quite scary (as it puts you and your loved ones in a difficult situation if someone tried acting upon your Power of Attorney to deal with an interest in land)!
And here’s yet another example. Did you know, for example, that for your Power of Attorney for Property / Finances to be valid in Manitoba, it must be signed in the presence of a witness who is:
- an individual registered or qualified to be registered under section 3 of The Marriage Act to solemnize marriages;
- a judge of a superior court of the province;
- a justice of the peace or provincial judge;
- a duly qualified medical practitioner;
- a notary public appointed for the province;
- a lawyer entitled to practice in the province;
- a member of the Royal Canadian Mounted Police; or
- a police officer with a police service established or continued under The Police Services Act.
Yet how many Power of Attorney Kits tell you this? You guessed it…
I’ve mentioned this before when critiquing other do-it-yourself Will Kits. And it’s the same problem with do-it-yourself Power of Attorney kits: there are no warnings as to who should be using their product. But do-it-yourself Power of Attorney Kits should generally NOT be used by those who lack mental capacity (e.g. they do not understand the nature and effect of making a Power of Attorney, etc.) or who are being unduly pressured by others. With respect to powers of attorney for property / finances, the person giving this document must be able to appreciate the nature of their property and approximate value, as well as the financial obligations they owe to dependents. If there’s something amiss with the person making the power of attorney, it may be challenged and rendered invalid by the court. Nonetheless, it’s rare to see these types of warnings on websites and Power of Attorney Kits! Why not? Because I’m sure they don’t want to scare you away, that’s why!
When you’re filling out a Power of Attorney (either manually or through Microsoft word or even online), some options are too rigid, too simplistic, or outright missing (e.g. substitute attorneys, specific instructions which you expect to be followed, limitations on the attorney’s powers, not revoking other powers of attorney, when the power of attorney takes effect, the naming of a person or person(s) who will make a written declaration as to when you’ve become mentally incompetent, the naming of a person or person(s) who you want to be notified in the event that you are declared to be mentally incompetent, etc.).
How can you truly express your wishes if your options are limited? You’re basically leaving it up to the creator of the Power of Attorney kit to tell you what options you have, but I’ve seen those options and they’re often problematic (again, either too limited or non existent)! Was the person who created the Power of Attorney kit a lawyer familiar with drafting Powers of Attorneys and Provincial Power of Attorney laws? Did they research all the different options available to you? And are they constantly improving their product by making updates – particularly when the laws change?
There’s limited education or warnings in many Power of Attorney kits I’ve reviewed. But you need to know about things like who appropriate witnesses are, how you are supposed to sign the power of attorney in the presence of a witness or witnesses, when the power of attorney takes effect and when it terminates, what happens if you don’t have a power of attorney, and so on. Powers of Attorney are very complex and trying to create one without enough education to make an informed decision may jeopardize your wishes or the validity of the Power of Attorney itself!
Not based on Provincial Power of Attorney laws
Many Power of Attorney kits don’t take into consideration the nuances of provincial Power of Attorney laws (which may cause confusion). Powers of Attorney are based on provincial laws. So if you lived and had property in Ontario, how you feel about a Power of Attorney that originated from a California that was prepared by a Florida lawyer?
Can a non-lawyer actually understand the difference between a properly worded and drafted Power of Attorney versus an improper one? I don’t think it’s easy for them unless they have formal legal training and understand what they should be looking for. This makes it even harder for the general public to know if the product they are purchasing and using is any good. Take it from me (a Canadian lawyer who has studied Power of Attorney laws throughout Canada): I’ve seen some very poorly drafted Powers of Attorney out there (incomplete, poorly structured and drafted, archaic, etc.). Poorly drafted Powers of Attorney may lead to their being challenged and rendered invalid.
There are lots of way in which your Power of Attorney can be rendered invalid (e.g. inappropriate witnesses, undue pressure, etc.). And again, a little education helps prevent against this.
Be sure to do your diligence before attempting to use a do-it-yourself Power of Attorney Kit. They are plagued with problems, may not be appropriate for you, and may cause more harm than good. It’s buyer beware! And the worst part is: you may be unavailable (i.e. mentally incapacitated) to deal with these problems, while your family and friends try to deal with the mess you left them!