Several months ago, I heard an interesting story about a man who was an avid sailor.  He put his boat into the the lake one day and headed out for some peaceful moments of sailing.  Several hours later the boat returned to shore, minus the sailor.  His family and friends faced some awful questions.  Had he fallen overboard?  Was he dead?  Was it an accident?  Was it suicide?  Hours went by, then weeks, then months and years.  Around the same time, a man in his seventies sat in an emergency waiting room while doctors attended to his very ill wife.  She had become delirious as a result of a serious, but undetected, infection.  This time it was the doctors who had questions, questions about the kind of treatment and care that this man’s wife would need.  Within a few weeks the questions were from health care providers in an extended care facility about whether and how measures should be taken to resuscitate his wife in case of “emergencies.”

If we were in such situations, we would probably wish that we had the clarity of mind to make good decisions, to know what to do and how to do it.  We would turn to family and friends for support in making those tough decisions.  Imagine the person at the centre of the problem, the person who is least able to help, actually being able to provide us with some of the solutions.  It is possible - if Powers of Attorney and Wills have been made in advance.  Those faced with a crisis would actually have some tools available to them to do the right thing.

In the case of the missing sailor, he had the foresight to prepare a Will and Powers of Attorney for Personal Care and Property long before his decision to go sailing.  Even the elderly woman, now in extended care, had taken the time, during better days, to put her affairs in order with a Will and Powers of Attorney.

Powers of Attorney are meant to be pre-estate documents.  They are intended to give specific authority to a person or persons to manage financial affairs or personal affairs while a person is still alive but incapable or unable to make the decisions themselves.  Generally, there are two kinds of Powers of Attorney.  There is a Power of Attorney for Property, or financial decisions, which authorizes someone to make decisions concerning the financial situation, payment of bills, transfer of property, depositing of pension cheques and so on.  In the case of the missing sailor, the friend, whom he had appointed as his Power of Attorney actually ran his company, paid his employees and looked after the family financially for a number of years.  He eventually sold the company for a profit.  The Personal Care Power of Attorney, on the other hand, empowers someone to make decisions about your personal situation, such as where you will live, who will look after you, what you will eat, what kind of care you will receive and even who will be entitled to see you.  In the case of the elderly woman, her husband was able to not only provide directions to the doctors in emergency, but was also able to obtain the best possible extended care help for his wife, right down to her ongoing nutrition and personal needs.

Many people assume incorrectly that a spouse or a family member will be automatically able to pay bills and take steps on behalf of a person who is suddenly incapable.  They are in for a rude awakening when they are told by banks and other financial institutions that they will not allow spouses or family members to simply deal with property in the absence of a Power of Attorney or a Court Order.  Even if a property was held jointly, for example the family home, it cannot be sold unless a Power of Attorney has authorized it or, after great expense, a Court Order has been obtained.

The Power of Attorney is valid only when a person is alive.  Once a person dies it is their Will that takes over and provides how their assets and liabilities are to be dealt with.  If there is no Will, then the rules of intestacy apply and, once again, the Courts and lawyers get involved at great expense.

Powers of Attorney for Personal Care and the so-called Living Wills are very similar.  Some provinces in Canada recognize the validity of Living Wills and some provinces, such as Ontario, allow an individual to set out in a Power of Attorney some considerations and wishes for their health care and medical intervention, in the event they are unable to speak for themselves.  For example, if a person does not want to be kept alive by artificial means or they do not wish to be resuscitated through heroic medical measures, these wishes can be communicated in specific wording in a Living Will or a Power of Attorney for Personal Care.

Obviously, this important authority to look after your personal care and property should be given to someone in whom you have the utmost confidence.  You may wish to select a friend who is particularly astute in business matters for the Power of Attorney for Property.  A trusted and close friend may be the right person to have authority in a Power of Attorney for Personal Care.  Who would you want to make decisions on your behalf - someone you personally selected or someone appointed by a Court?

There is no more affordable service provided by lawyers than the drafting of Wills and Powers of Attorney.  I think that one of the most rewarding aspects of helping individuals and families with these matters is their reaction after the Powers of Attorney and Wills have been signed.  They lean back in the chair, give a sigh of relief and say, “That was a lot easier than I thought it would be.  It really gives me peace of mind.”

As you go forward in 2009, you may discover that a great contribution to your own search for clarity may be achieved by giving yourself – and someday your family - that peace of mind feeling.

This entry was posted on Wednesday, March 4th, 2009 at 7:32 pm.
It is categorized under estate law.
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