We are most commonly asked about how to get Power of Attorney when someone’s parent, spouse or loved one is starting to lose, or has lost, their mental capacity to make decisions for themselves. To start, in Canada, it’s important to know that there are two kinds of power of attorney:
- General Power of Attorney – Is valid only while you are mentally capable to grant this permission. This might be suitable to set up if you are traveling, moving overseas or have a lot of business affairs to handle and want to appoint someone to help. However, if something happens to you, and you become incapable of managing your affairs, it will no longer be valid.
- Enduring Power of Attorney – Appoints another person to manage your affairs and remains valid if you become unwell or incapable of doing so yourself. If you become incapacitated, and do not have an Enduring Power of Attorney in place, someone would have to apply to the court to get permissions to manage your money and administrative affairs.
Unfortunately, all too often, many families or loved ones learn too late in the process that a person may be no longer capable of granting Power of Attorney. It is easier to give Power of Attorney than it is to get Power of Attorney.
The best time to suggest to someone that they need to appoint a Power of Attorney is before they actually need it. While it may be difficult or uncomfortable to ask a loved one about their Wills & Estate planning, it can certainly ease the administrative challenges you will face when you need these documents but they’re not in place.
Read more about how to set up a power of attorney.
Granting Power of Attorney
Given that both Power of Attorney and Enduring Power of Attorney are legal documents allowing a person or organization the authority to make important administrative and financial decisions, you will need to be over 18 years old and have the mental capacity to grant that permission. See the Alberta Powers of Attorney Act and B.C. Power of Attorney Act for full requirements.
If You Can’t Get Power of Attorney, You May Request Guardianship
Sometimes, depending on the circumstances, you may be at a point where your parent or loved one can no longer act on their own behalf, but they are not in a position to assign a Power of Attorney. In these instances, you will want to look into whether Guardianship is right for your situation.
An adult who needs a guardian
- is 18 years of age or older
- has had a capacity assessment completed that indicates they lack capacity to make personal decisions
- less intrusive and less restrictive options are not likely to be effective
- may be vulnerable because of a permanent or temporary disability or illness
- doesn’t have a personal directive and needs someone to make personal decisions for them
Granting Guardianship is not without its own challenges, both in the court and in the family, if there is disagreement about who should be making the decisions or what those decisions should be.
Get a Lawyer
Regardless of which legal document you need to navigate, you’re going to want a Wills & Estates lawyer on your side. As every person and every circumstance is different, we recommend booking a consultation with One80 Law to discuss your specific needs. We can help make sense of these complex situations, and protect your money and property in the years to come with the proper legal documentation.