Power of Attorney Obligations to Family Members

Feb 23, 2023

Whether you are selecting a Power of Attorney (POA) or have been named as a POA, you may be wondering about the Power of Attorney obligations to family members. Granting Powers of Attorney is a big responsibility, and it’s important that you make your decisions with care.

What is a Power of Attorney?

A Power of Attorney is a legal document that gives a family member or other designated person(s) the power to make decisions on your behalf while you are still alive.

This article covers two main types of Powers of Attorney: Continuing Power of Attorney for Property (sometimes referred to as “Financial POA”) and Continuing Power of Attorney for Personal Care (“Medical POA”).

A third type, Non-Continuing Power of Attorney provides temporary powers in case of medical incapacity or, for example, to manage your affairs when you are on an extended vacation. This type will not be covered in the article.

Power of Attorney Responsibilities

General Power of Attorney obligations to family members include:

POA for Property (Financial POA)

Responsibilities include managing:

Everyday expenses
Day-to-day banking
Filing tax returns and paying taxes (including property taxes)
Investments
Real estate or other property purchase / sales

POA for Personal Care (Medical POA)

Make decisions to ensure adequate provision of:

Health care and medical treatment
Food / clothing / shelter
Hygiene and safety

Choosing a Power of Attorney

As mentioned, designating a POA is a huge responsibility – you are, in essence, placing some of the most important decisions of your life in another person’s hands. The high level of trust is why family members are often designated as POAs. However, it is not necessary to choose someone from your family.

You can select anyone to be your POA, as long as they are 18 years of age or older. You can even name someone outside the province since nowadays many of the key duties can be performed online or coordinated remotely. However if many of their duties need to be performed locally, you might wish to consider someone closer to home.

Although many family members will take the role of POA freely, your POA can be paid for their services.

Ideally, you will choose someone who:

Is trustworthy,
Will respect your privacy,
Holds similar values to you, whether in finances or personal care standards,
Is willing and able to take on the responsibility.

Your POA for property and personal care donot have to be the same person(s).

You Can Choose More than One Power of Attorney

In order to reduce the impact of Power of Attorney obligations to family members, you may wish to appoint more than one POA. In this case, you have the choice to appoint POA powers:

Jointly – meaning all POAs will have to make decisions together. This may be a good choice if you do not entirely trust either party to make the right decisions every time; however, it can create more work for your POAs.
Jointly and severally – in this case, your POAs can each make decisions on your behalf without the other. This is useful if one POA is, say, sick or on vacation. Decisions can still be enacted without delay.

What Makes a Power of Attorney Valid?

To make a POA valid, the person creating the POA must be considered mentally capable.

The document must be properly signed, dated, and witnessed by two people. The witness cannot be your spouse (married or common-law), your child, your attorney or your attorney’s spouse or partner.

By default, a valid Continuing Power of Attorney automatically and immediately empowers your POA to make decisions on your behalf, unless otherwise stated in the document.

How to Enact Power of Attorney

Institutions may require different documentation to prove you can take up Power of Attorney obligations to family members. Some may wish for a notarized copy of the document(s), while others may require original documentation.

When POA documents contain conditions that the powers can only be used when you are mentally or physically incapacitated, your POA may also need to provide notes from medical professionals.

What Happens if I Don’t Name a Power of Attorney?

If you don’t name a POA, a family member has the right to make decisions, or a close friend might apply to become a “guardian” for your property or personal care.

However, not designating a POA in advance can create disagreements in your family, and possibly disrupt your care. The person who takes the responsibility may not be who you wish to have care for you.

Review Your POAs and Will Periodically

Life changes, and so do your decisions. It’s a good idea to review your Will and Power of Attorney documents periodically to ensure they reflect your current wishes. Your lawyer can ensure previous copies are revoked and keep the most current documents on hand.

Time to Create or Revise Your Will and Power of Attorney? Contact the Kelly D. Jordan Family Law Firm

Whether you are working on your Will, Powers of Attorney, or entire estate plan, the team of family law attorneys at the Kelly D. Jordan Family Law Firm make completing your documents a seamless and effortless process. We don’t want your paperwork to require a lot of paperwork! We work with you to help make the decisions easy and the process simple, understandable, and affordable. We even offer a flat rate per person in some cases.

Contact the Kelly D. Jordan Family Law Firm today to get started.

Resource:

Ontario Ministry of the Attorney General – Office of the Public Guardian and Trustee
Powers of Attorney Questions and Answers