A Power of Attorney is a legal document that gives someone else the right to act on your behalf. The person creating a power of attorney, also known as the “grantor”, can only do so when he/she has the requisite mental capacity. However, if the donor loses capacity (from, for example, Alzheimer’s disease or a head injury in a car crash) to grant permission at any time after the power of attorney has been created, the document will probably stop being effective and enforceable unless the grantor specifically states in that power of attorney that he/she wishes the document to remain in effect even if he/she becomes incapacitated. This type of power of attorney, that stays in effect even after the grantor becomes incapacitated, is commonly referred to as a durable power of attorney. It is important to note that if someone is already incapacitated, it is not possible for that person to sign and/or execute a valid power of attorney. A person must have capacity in order to validly sign legal documents, including a power of attorney. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power of attorney in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship
Equal Dignity Rule
The equal dignity rule is a principle of law that requires an authorization for someone performing certain acts for another person to have been appointed with the same formality as required for the act the representative is going to perform. This means, for example, that if a principal authorizes someone to sell the principal’s house or other real property, and the law requires a contract for the sale of real property to be in writing, then the authorization for the other person to sign the sales contract and deed must be in writing too.
Signatures and notarization
In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal. This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party. Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge.
Types of Power of Attorney
In Ontario, there are three kinds of Power of Attorney:
- A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to act for you even if you become mentally incapable.
- A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.
- A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care.
What does the term “mentally incapable” mean?
It means different things for different types of decisions and actions. For example, the level of mental capacity a person needs in order to make a valid power of attorney is different from the capacity needed to make personal care or financial decisions. The definitions are provided below under the topic headings.
What is a “living will”?
The expression “living will” is sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment. It is quite common, for example, for people to write a “living will” saying that they do not want to be kept alive on artificial life supports if they have no hope of recovery. The term “advance directive” is also frequently used to refer to such a document. Some people use the phrase “proxy directive” to describe a document that combines a Power of Attorney and a “living will”.
To find out more about living wills and related matters you may wish to refer to the various materials that are available in bookstores and libraries on the subject.
Is a “living will” the same thing as a “Power of Attorney”?
No. A Power of Attorney is a legal document in which you name a specific person to act on your behalf. You can, however, write your treatment wishes (your “living will” or “advance directive”) as part of your Power of Attorney document so that you can be sure your attorney is aware of them. A “living will” just addresses your treatment and personal care wishes and does not need to name anyone or be written in any specific way.
If I don’t make a Power of Attorney or a “living will”, will the government automatically step in if I can’t manage my own affairs?
No. In these circumstances a family member has the right to make your health care decisions or apply to become your “guardian” of property. Alternatively, someone else – such as a close friend – could apply to act for you in these matters. The government, through the Office of the Public Guardian and Trustee, acts only in situations where no other suitable person is available, able and willing.
A Power of Attorney Kit in Ontario
The Office of the Public Guardian and Trustee has produced a Power of Attorney Kit that will help you appoint the person you want to make decisions for you when you are no longer able to do so for yourself.
Why do I need a Power of Attorney?
Many people believe that if something happens and they are unable to make decisions for themselves, their family can do so for them. This is not necessarily true. For financial decisions, legal authority is needed. You can give this authority by naming someone in a continuing power of attorney for property.
For personal care decisions such as where you live or what you eat, you can give legal authority by naming someone in a power of attorney for personal care.
While it is very important to consider whether to make a power of attorney, you don’t have to, and no one can make you sign one if you don’t want to. But remember, if you don’t make a power of attorney, someone may have to be formally appointed some day to make decisions for you, if the decisions involve matters other than medical treatment.
Where can I get a Power of Attorney Kit?
Copies of the Power of Attorney Kit can be obtained from:
- The Ministry of the Attorney General (http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/poa.asp )
- any Office of the Public Guardian and Trustee (http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/locations.asp )
- by calling 1-800-366-0335, (416) 314-2800 in Toronto
- your Member of Provincial Parliament (MPP)
Tip: No one can make you sign a power of attorney if you do not want to. But, if you do not choose one, the government may have to appoint someone to make certain decisions for you. It is better if you choose someone you feel you can really trust, who knows your wishes.
OATH & AFFIDAVIT SERVICES FROM COMMISSIONAIRES
An affidavit is a formal sworn statement of fact, signed by the author, who is called the affiant or deponent, and witnessed as to the authenticity of the affiant’s signature by a taker of oaths, such as a commissioner of oaths.
The name is Medieval Latin for he has declared upon oath. An affidavit is a type of verified statement or showing, or in other words, it contains verification, meaning it is under oath or penalty of perjury and this serves as evidence to its veracity and is required for court proceedings. Not all affidavits require a notary public for execution.
Affidavits may be written in the first or third person, depending on who drafted the document. If in the first person, the document’s component parts are:
- a commencement which identifies the affiant;
- the individual averments, almost always numbered as mandated by law, each one making a separate claim;
- a statement of truth generally stating that everything is true, under penalty of perjury, fine, or imprisonment;
- an attestation clause, usually a jurat, at the end certifying the affiant made oath and the date; and
- signatures of the author and witness
If an affidavit is notarized or authenticated, it will also include a caption with a venue and title in reference to judicial proceedings. In some cases, an introductory clause, called a preamble, is added attesting that the affiant personally appeared before the authenticating authority.