Most people are aware of the importance of having a Will. They want to direct how their estate will be divided and how young children are to be cared for. If a person does not have a Will, the Wills and Succession Act sets out how the estate will be divided. A Will gives a person a voice and directs how affairs are to be handled.
But what if one becomes physically or mentally incapacitated before death? What if they are unable to make or communicate their own decisions? A will does not cover this problem area.
In order to remedy this situation, the Powers of Attorney Act and the Personal Directives Act enable a person to give financial and personal directions in advance which are to be followed if that person becomes unable to manage his own affairs and make personal decisions.
An Enduring Power of Attorney appoints a person as Attorney and gives them the power to manage the finances and deal with assets. If the Power of Attorney is written properly, it will continue to be effective if the Grantor becomes incompetent or it can come into effect when the Grantor is deemed incompetent. This gives Grantors a say in how their finances will be dealt with when they are not able to handle their finances themselves.
A Personal Directive appoints an Agent to make personal decisions, most importantly health care decisions, for the Grantor when the Grantor is incapable of making the decisions or communicating them. Unless specifically limited in the Personal Directive, the Agent has the power to make decisions regarding health care, accommodation, with whom the Grantor may live and/or associate, participation in school, education or employment, and legal matters. Certain matters which are excluded from the Agent’s powers unless specifically provided for in the Personal Directive: Psychosurgery, Non-therapeutic sterilization, Inter-vivos organ and tissue donation, and Participation in non-therapeutic research or experimentation.
If a person does not have an Enduring Power of Attorney and a Personal Directive, no one, not even a spouse or family member, has the legal authority to make substitute decisions. If there is not an Enduring Power of Attorney and a Personal Directive, then someone has to be appointed as Guardian under the Adult Guardianship and Trusteeship Act.
Enduring Powers of Attorney and Personal Directives are very powerful and useful documents allowing an individual to make arrangements and make determinations regarding personal and financial matters. They are a wise investment to avoid more complex and expensive Court proceedings which would have to be commenced if a person became incapacitated.