Enduring Power Of Attorney

2016-02-11

DO YOU NEED ONE?

Although almost half of Canadians do not have a Will-even fewer know about or have in place, an Enduring Power of Attorney. Yet, for a middle aged man, for example, the chances of becoming incapacitated by an accident or disease are over 3 times greater than the chances of premature death.Most of us in mature years, force ourselves to contemplate the reality of our mortality. Far fewer can envisage a circumstance of mental deficiency for themselves.

Many are acquainted with the concept of a Power or Attorney. Historically, Powers of Attorney have been assigned to cover specific circumstances, for example, when a snowbird spends winters in Palm Springs and wants Canadian bills paid or investments managed. Central to the Power of Attorney concept is the little recognized fact, that power is terminated immediately, if the grantor loses mental capacity.This leaves the person's affairs to drift, while the family and attending physician gather documents to to satisfy the Court's legal requirements to appoint a Trustee. Under Canadian law, a Power of Attorney is only as good as the mind of the person who grants it. The Power of Attorney depends on the person's ability to confirm its existence and to revoke it. In other words, you lose the benefit of a Power of Attorney when you need it the most.

To deal with this problem, the law provides for an ENDURING Power of Attorney. The document specifies that the Power of Attorney will remain in effect if you become mentally incapacitated. In B.C. you are required to consult with a Lawyer to prepare a EPA, because the level of control that such a document provides.

Keep in mind that an Enduring Power of attorney only deals with financial affairs. It does not deal with personal decisions such as whether or not to employ life sustaining medical procedures to prolong life.These issues are dealth with through a separate legal document called a Personal Representation Agreement.

A parent's senility need not be a complete nightmare for their children. By the time a parent is drifting in and out of senility, it may be too late to settle any lingering financial questions adequately. Family members may be forced to make decisions they don't feel qualified to make or perform functions not legally backed, or cover bills they can't really afford to pay.

To ease the strain that both parent and children can suffer, governments across Canada have introduced Acts to allow Powers of Attorney to "Endure" beyond the time of lost mental capacity.

Here is the important part. Without an EPA, the legal process of being declared incompetent can be humiliating, contested, time consuming and expensive to the tune of $4,000-$10,000 in fees. Children could compete to become the one declared in charge of the parent's affairs. Under an Enduring Power of Attorney, the parents themselves choose whom they want to act with respect to their property and financial affairs. They can also name an alternate if the one named is unavailable. Without this document, even in the case of married couples, one spouse is not automatically able to take control of the other's assets. Courts could give control of your finances to someone you would not have chosen. A Will only takes effect on death, while an EPA directs your affairs while you are still alive. Essentially, an EPA gives your appointee the power and discretion to handle all of your assets and finances. The person does have the legal obligation to act in your best interests.

The Enduring Power of Attorney is a very powerful document.It can be made effective immediately on signing or only when the incapacity occurs in the opinion of the Attorney named and the family physician. Normally such incapacity is established by an examination by the doctor and his written opinion.An EPA can be general or restrictive.You may elect to put limiting clauses in the instrument. Clearly, you must appoint someone you trust completely, is capable of handling your affairs and familiar with your personal objectives. Some clients name two persons to act jointly to provide an extra safeguard.

The job of acting as the named Attorney carries a great deal of responsibility and time. The Grantor can cancel the EPA at any time, as long as they understand what they are doing and remain competent.

An Enduring Power of Attorney is a critical component of your Life Plan. With a little effort and cost on your part, you can provide valuable protection for yourself and your family. Legal costs are normally in the area of $250 to secure this objective.

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