Ensure your powers of attorney are up to date
One thing that the COVID-19 pandemic has shown us is how quickly and unexpectedly circumstances can change. Still, there is a natural tendency to avoid the unpleasant thought of a crisis, including becoming incapacitated. The reality is that anyone can become incapacitated at any age and at any time, whether it’s due to an accident or related to health reasons.
It is always best to do your planning when you are healthy and your state of mind is good. Now is an opportune time to assess whether you have the proper documents in place to avoid putting your family through unnecessary additional stress should you become incapacitated.
Power of attorney for property
A power of attorney for property1 is a document that is used to help manage your financial affairs and property while you are alive. It is important to have this in place in case you become temporarily or permanently incapacitated. Without it, things become much more difficult for your family. It is a fairly straight-forward document that a lawyer can prepare for you.
A power of attorney for property document appoints one or more individuals or a trust company to manage your assets should you be unable (or unwilling) to do so yourself. If you become incapacitated and you don’t have this in place, someone needs to come forward and apply to the court to be appointed to manage your assets. In the interim, the government may be taking on this role. This process is costly and can take months to complete. In the meantime, your assets may be frozen.
Power of attorney for personal care
You can also name a person to lawfully make personal-care decisions for you. This is a separate document prepared by your lawyer that may be called a power of attorney for personal care, a health-care directive or a representation agreement1. In addition, you can outline in the document how that nominated individual can make those decisions for you. You may even state when you want to have medical care ended or withheld.
Take control of who to appoint as your agent within these important documents.
Mandate in case of incapacity
In Quebec, the drafting of a mandate in case of incapacity in notarial form or in front of witnesses, allows any able person to appoint the mandatary or mandataries who will act on their behalf in the event of incapacity.
There are two types of mandataries – those for property or for personal care. Mandataries for property can be either individuals or a trust company. In contrast, the mandataries entrusted with looking after your well-being must be individuals.
The execution of a mandate in case of incapacity occurs only when the following conditions are met: There is medical and psycho-social proof of incapacity and the mandate is approved by a court of law or authorized by a notary.
The effect of the mandate in the event of incapacity will end at the request of the principal if they regain their capacity.
In Quebec, the mandate in case of incapacity should not be confused with a power of attorney (POA). The POA applies only to property (assets), unlike the mandate, which may also apply to the protection of the individual. The general POA in Quebec is a written document in which you authorize a third party to perform certain routine administrative acts (payment of bills, withdrawal of money from a bank account) or other tasks of greater importance. It can be notarized.
The POA in Quebec may take effect as soon as you decide, and you can terminate it at any time. In principle, it ceases to be valid when one becomes incapable of monitoring the actions of the person deemed to have power of attorney or after the court recognizes the incapacity.
Take the time to review
If you have prepared these documents in the past, you should conduct a review to see if they still reflect your current wishes and circumstances. Estate documents (including powers of attorney and wills) should be reviewed every 3 to 5 years or when a significant life event has occurred that changes your circumstances.
Notably, during the pandemic, lawyers are meeting clients over video calls and some provinces are even allowing virtual execution of the documents.
Don’t leave a mess or extra stress for your family. The onus rests with each of us to ensure we have made all the necessary arrangements. This will ensure peace of mind for yourself and your family.
Speak to your Advisor about getting the process started. We can help!