What Kind of Will Do I Need?
For protection during your lifetime, there are some benefits to having a living will and Power of Attorney (POA)/Mandate. A living will allows you to maintain control over your own health care decisions, even when you can’t make them. A Power of Attorney gives the individual(s) you name the authority to manage your financial affairs and other matters.
Power of Attorney/Mandate
Many people believe that if you were to become mentally or physically incompetent due to illness or accident, your spouse or partner can simply act on your behalf. This is not true. Without a court order or a general Enduring Power of Attorney, your family members cannot manage your financial affairs. Your spouse wouldn’t even be able to access your financial accounts unless these were held jointly.
An Enduring Power of Attorney, also called a “Continuing” or “Durable” Power of Attorney in some provinces/territories—and a “Mandate Given in Anticipation of Incapacity” in Quebec—can solve the problem and gives the individual(s) you name the authority to manage your affairs. It can be broad in scope—covering all the things you would normally do—or it can be narrow, such as being limited to bank accounts or investments.
You can also create a simple Power of Attorney/Mandate for a limited time, such as when you are away from home and require certain matters to be handled on your behalf. Other possibilities include an Enduring Power of Attorney that is narrower in scope or Powers of Attorney for assets in different jurisdictions. It is very important for all these documents to be structured so that they “work together,” which means legal advice is key during their preparation.
Who to appoint as Power of Attorney/Mandate
You can appoint an adult child, spouse, good friend, trust company or another family member as your Power of Attorney. You can also appoint two or more individuals and specify whether they need to act together (jointly) or if they can act together and separately (jointly and severally).
As with your will, you should seek the help of a lawyer (or notary in Quebec) to create your Power of Attorney/Mandate to ensure it reflects your wishes and is legally effective.
What can happen without a Power of Attorney/Mandate?
If you were to suddenly become incapacitated and you did not have a Power of Attorney/Mandate, your family would have to apply to the provincial government or courts to have someone appointed to manage your affairs. This could be an expensive and lengthy process, often taking weeks or even months to complete.
Simply put, a Power of Attorney/Mandate can help make the best of a difficult situation and is essential to your estate plan.
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