A Continuing Power of Attorney for Property is a legal document in which you can appoint a person or persons to act on your behalf (called an "Attorney") with respect to your property and financial affairs. The document will allow them to make decisions for you if you become incapable of managing your financial affairs.

*The term "Attorney" refers to the person or persons you have chosen to act on your behalf. He or she does not have to be a lawyer.

WHO YOU CAN APPOINT AS YOUR ATTORNEY FOR PROPERTY

You can choose anyone you want as your Attorney as long as he or she is eighteen (18) years of age or older.

You can also choose multiple people to act. If you appoint more than one person, you can state that the Attorneys are to act "jointly" or "jointly and severally". If the Attorneys are appointed "jointly", this means that they will be required to act together at all times. If the Attorneys are appointed "jointly and severally", this means that either of the Attorneys named can act independently.

If you name the Attorneys "jointly", the advantage is that there is always a second person "double checking". A disadvantage of naming the Attorneys "jointly" is the lack of flexibility – say, for example, if one Attorney is temporarily unavailable because of vacation, the available Attorney will not be able to make any decisions without the second person.

APPOINTING A TRUST COMPANY AS YOUR ATTORNEY FOR PROPERTY

Some people prefer to appoint trust companies (many of the big banks offer trust services) because they are professional and impartial.

WHAT HAPPENS IF THE PERSON YOU CHOSE IS DECEASED, IS INCAPABLE, OR DOES NOT WANT TO ACT AS YOUR ATTORNEY FOR PROPERTY?

If two or more Attorneys act jointly under the Continuing Power of Attorney and one of them dies, becomes incapable of managing property, or resigns, the remaining Attorney or Attorneys are authorized to act, unless the power of Attorney provides otherwise.

If only one primary Attorney was named, you can name a substitute Attorney, and the substitute can act.

DATE OF EFFECTIVENESS OF THE POWER OF ATTORNEY FOR PROPERTY

We generally recommend that the Power of Attorney give your Attorney legal authority as soon as the document is signed. However, you can specify otherwise in the document. For example, some people only want the document to be effective upon a specific date or specific event (such as the Attorney obtaining a letter from your family physician which states that you are mentally incapable and cannot manage your property).

An advantage of giving your Attorney legal authority as soon as the document is signed is that your Attorney will not need to go through formal processes to prove to third parties, such as banks, that the Power of Attorney has come into effect.

IS MY ATTORNEY ENTITLED TO COMPENSATION?

Your Attorney is entitled to take payment at a rate set out by the law, unless you say otherwise in the Power of Attorney for Property.  If you want to prohibit your Attorney from taking any payment or you want to set a specific amount yourself, you can do this by including specific instructions in the Power of Attorney for Property.

FIVE FACTORS TO CONSIDER WHEN CHOOSING WHO YOU SHOULD APPOINT AS YOUR ATTORNEY FOR PROPERTY

Choosing an Attorney for Property is an important decision as that person will have full access to your money and other property.

  1. Trustworthiness

Is the person honest?

Do you know the person well enough or long enough to trust them?

Will this person act in your best interest?

Does the person have personal issues such as financial or health concerns that may interfere with the management of your property?

  1. Reliability

Can you rely on this person?

  1. Experience

Does the person understand financial matters?

  1. Availability

Does the person have the time to handle your financial matters?

Is the person readily available and easy to contact? Does the person live nearby?

  1. Willingness

Is the person willing to take on the responsibility?

Does the person understand the duties and responsibilities involved in being your Attorney?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.