Protection for Ailing Parent
The Enduring or Continuing Power of Attorney for Property
A Power of Attorney (POA) is a legal document that gives someone the right to act (as an attorney) in another person’s place. A general POA is a very powerful document which allows the attorney to do almost anything that the person granting it was able to do. For example the attorney could sell all the donor’s investments or sell their house. However, the agreement can be structured in such a way that the attorney only has specific powers or rights. When a general POA is granted it is assumed that the donor has the mental capacity to do so. Ordinarily, the powers granted would cease if the donor became mentally incapacitated. Therefore, if the POA is being established in the anticipation of the donor’s later mental incapacity, it is very important that it is structured as a Continuing or Enduring POA. This will ensure that the powers granted to the attorney will continue if the donor is no longer capable of making their own decisions.
Powers of Attorney for Personal Care
This document is sometimes known as a Living Will although there can be some differences depending where you live. It gives the designated person or people the power to make decisions regarding the medical treatment of the person when they are unable. Some of the issues that can be addressed by the attorney are:
Hospice Care
- Change of physicians
- Use of experimental treatments
- Nutrition
- The use of 'heroic measures' to prolong life
An advantage of having a POA for Personal Care in place is the ability to make health care decisions in a timely way. In the absence of this arrangement the concept of patient/doctor confidentiality may mean that you may not be able to determine all of the facts about your parent’s situation and cannot make decisions effectively. Ideally, to deal with a parent’s situation effectively there should be a Power of Attorney for Property as well as a Power of Attorney for Personal Care in place.
One person can be named as the attorney or it can be a joint situation. The attorney will generally have to be at least 16 years of age. Some people may be restricted from being the representative such as the individual’s doctor or nurse.
Generally, the POA becomes effective when a competent health care provider decides that the individual is no longer able to make their own decisions.
However, it is highly advisable to seek advice from a qualified lawyer.
Power of Attorney issues are a provincial/territorial concern and there is different legal treatment of these arrangements in different parts of Canada. As well, legal counsel will help to ensure that the document is structured in the proper way to deal with the specific situation.