Power of Attorney

WPower of Attorneyhat is a power of attorney?

A power of attorney is a written document authorizing another party to act as agent (attorney), with certain powers to act on behalf of the person who appointed the attorney (the "principal"). The agent’s power is revoked on the death of the principal by operation of law. Powers granted under a power of attorney can be either general or special. In other words, a power of attorney can grant complete authority or can be limited to certain acts and/or certain periods of time.

There are several different forms of power of attorney, including:

General Power of Attorney: A general (or immediate) power of attorney gives your attorney the power to manage your assets and financial affairs as long as you are alive. You can appoint your attorney for a fixed period and revoke the appointment at any time, providing you are still legally capable of doing so. Your appointed attorney can only act on your behalf as long as you are still living. Upon your death, the executor you named in your Will takes over the administration of your estate.

Enduring Power of Attorney: An eduring (or durable) power of attorney is valid even if you become incapacitated and unable to handle your own affairs. A regular enduring power of attorney becomes effective as soon as it is signed. A "springing" enduring power of attorney does not become effective unless and until you actually become incapacitated. Both types of enduring power of attorney remain valid and in effect until you specifically revoke or cancel the power of attorney or until you die (and your attorney in fact can still act on your behalf until actual notice of your death is received). Both types of enduring power of attorney allow your attorney in fact to deal with the financial and property matters you specify in the document. You may not want your attorney in fact to have authority over certain assets, such as a mutual fund you want to pass by will, or your house. Upon your death, the executor you named in your Will takes over the administration of your estate.

Limited Power of Attorney: A limited (or special) power of attorney gives your attorney only very specific powers, so that he or she can handle a particular matter if you are unable to deal with it for any reason (such as buying or selling property, signing legal documents for a transaction, etc). Typically, a limited power of attorney dealing with real estate transactions will need to recorded in a title office or land registry.

Why would I want to grant someone else power of attorney over my assets and affairs?

If you travel frequently (or are away on military duty, extended vacation, etc) and have financial and/or business interests that need to be handled in your absence, or if you want to ensure that your affairs will be dealt with if you should become incapacitated, appointing an attorney will allow you to decide who will make legal, financial and medical decisions for you. The person or persons you appoint become your "attorney in fact", which means that they must make these decisions as if they were you.

Who should I appoint as my attorney in fact?

You can appoint anyone that you trust and that you feel will handle your affairs as you would handle them, if you were able. The only requirements are that the person must be an adult and must have the legal ability to enter into a contract. Your attorney can be a relative, a friend, an advisor, or you can name 2 or more persons to act together as your attorney. Before appointing an attorney, be sure to consult the person to make sure that they would agree to act in this capacity. There is no legal requirement that anyone serve as your attorney if they do not wish to do so. There is also no legal requirement that your attorney be compensated for the services he or she renders, however, you might want to consider compensation, especially if your attorney’s duties are complicated and time-consuming.

Does a power of attorney have to be in writing and be notarized?

Yes. It must be in writing and your signature must be notarized and/or witnessed (according to applicable laws) to be effective. The principal must be of legal age, and of sound mind and capable of providing clear instructions to your attorney. The original should be kept in a safe place. In the case of a "springing power of attorney" which becomes effective upon your incapacity in the future, the document must also be kept in a place that is known to, and is accessible to, the person(s) you appointed as your attorney. For example, your attorney in fact may have no way of retrieving the document if it is in your safety deposit box.

 

How can I revoke or cancel a power of attorney?

You can revoke a power of attorney by notifying your attorney in fact that you are revoking the power of attorney. Revocations are not always required to be in writing, however, for clarity’s sake, it is recommended. A simple 1-page form stating that you wish to revoke the appointment of your attorney will usually suffice. The form should be signed by you and your signature should be notarized. If the power of attorney involves your incapacity, you may want to have witnesses also sign the revocation document. You should then deliver the revocation notice to the attorney in fact and deliver copies to any person or business to which the attorney in fact may have presented the power of attorney. If the power of attorney involved a transaction for the purchase or sale of real estate and was recorded in a title or registry office, you should also record the notice of revocation.

 

If you would like to have a representation agreement prepared and or any other estate planning documentation, you may complete our online questionnaire which will enable us to access the scope of work for the will or you may contact Open Door Law Corporation @ 604-689-3667 to book an appointment and to discuss your situation.  


Click here for a Power of Attorney Questionnaire.

 

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