Personal Directives, Enduring Powers of Attorneys and Trusts
Powers of Attorney
A Power of attorney is a document whereby an individual called the Donor, assigns the ability to manage his assets to another individual called an Attorney. In this context, the term attorney does not mean lawyer, merely someone appointed to manage another person's assets. Powers of attorney, unless otherwise stipulated, come into effect the minute that they are signed by the Donor. Powers of attorney may be far-reaching or quite restricted depending on what the Donor assigns as powers to the Attorney. Typical powers include the purchase, sale, mortgaging, leasing or renting of real estate. Other powers of attorney may include the management of an investment portfolio, either restricted by the Trustee Act of Alberta or not. Powers of attorney may include either or both of these items. Powers of attorney may include or exclude the management of banking assets, payment of bills, and general management of any property. As this suggests, Powers of attorney are frequently assigned when the Donor is going to be removed from his property for a significant period of time or at a point in time when significant decisions may have to be made but the Donor's availability to make same decisions is unlikely. For example, individuals who make their living in foreign countries frequently assign a power of attorney if they have listed their home for sale but will not be around to sign the documents should a sale occur while they are overseas. Another use of Powers of attorney is for final decisions when someone loses their capacity to make decisions on their own. Under normal circumstances a Power of attorney will cease to be effective upon either the death of the individual or even the Donor's loss of capacity. For this reason, we frequently create what are called 'springing' and 'enduring' Powers of attorney. Unlike a normal Power of attorney which comes into effect upon signing, a springing Power of attorney lies dormant until such time as some condition occurs. For example, we will frequently write a Power of attorney for an individual that shall remain dormant until such time as that person is deemed to have lost their capacity to make decisions on their own. At that point the Power of attorney will 'spring' to life. It is important to consider how the court will determine that the Donor has lost their capacity to make decisions so that it can determine when the Power of attorney has sprung to life. For obvious reasons, these particular springing Powers of attorney, are also enduring powers of attorney, that is, they will endure and survive the finding of the individual lacking capacity. In those cases, the power of attorney will remain in effect until the donor dies, the attorney dies, or potentially the donor regains capacity.
One significant area of person's affairs that a power of attorney does not specifically express is the area of personal medical decision making. Those decisions are made under a Personal Directive.
In an personal directive an individual, again called a donor, grants the decision making over their body, their comfort and indeed can include final decision making as to final care to another individual called their agent. The personal directive, unlike the power of attorney, is always dormant until it is deemed that the donor has lost mental capacity.
The language determining the loss of mental capacity is therefore vital and deserves significant consideration in the drafting of a personal directive. Once activated, the agent has full decision making powers as to where the donor will live, in their own home or in an institution, who that person may or may not associate with, what activities that person may or may not partake in including in some instances what treatment will or will not be given.
In many personal directives, there is language addressing end of life decisions. These include decisions around paying management, tube feeding, the administration of antibiotics, the administration of amputations, blood transfusions, any treatment that may be required or suggested for the patient's comfort or indeed survival.
The inclusion of any or all or none of these provisions involves deep consideration of one's personal, ethical and religious beliefs. It is important to remember that these decisions are only assigned to the attorney when the donor lacks the ability to make those decisions for themselves, and indeed, in the case of 'end of life' decisions when the donor has no reasonable chance of recovering health.
Another important consideration in relation to personal directives and powers of attorney is, should there be a conflict between the decision of the personal directive agent and the attorney named in the power of attorney, who's word shall prevail? For example, it may occur that the agent feels that the donor is best served by being in a care home whereas the attorney feels that the cost of a care home is unwarranted compared to the cost of having the donor remain in their own home with some level of care in that home. In such a case, it would be best if there was a mechanism built into both the power of attorney and the personal directive indicating in such conflicts which agent or attorney has the final say.