Power of Attorney & Living Will....looking for info

[cruiser]

I was just talking to a friend about Power of Attorney and a Living Will. They were saying that in order to do up a Power of Attorney, both you and the person you name to carry out your wishes, must be present in front of a lawyer to sign all of the necessary paperwork. In addition, they were telling me about what happens if you don't have a living will or Power of Attorney and you become incapacitated: (e.g., the banks don't listen to your relatives; hospitals do as they wish with you, etc.)

Can somebody confirm...firstly, do both people have to be present in front of the lawyer to do up both documents? Reason is...a relative told me that they had named me as a Power of Attorney for them, but I never went to a lawyer to sign anything, etc.

Second, is it as bad as my friend was saying....if you don't have these documents, your family basically has no recourse for your needs should something happen to you.

Would anyone be willing to share their experiences from both sides of the fence regarding this situation.

thanks.

 

[uncleg]

1 ) Both parties have to be present to sign the power of attorney. Just went through that recently with my mother.

2 ) Banks will ignore you, as will the hospitals. Things could end up in the hands of a provincial trustee and you don't want that.

 

[bjluver]

I've gone through the power of attorney part and have researched other options. Both of you must be present in order to sign the POA. You can do this at a Notary's office and this will save you some money as they are cheaper than lawyers. I think this cost about 4-5 hundred but can't remember for sure. Even if it is too "late" there are other options. You can apply to the court for something called a commitee (pronounced com i tay) which in effect means that the person involved is no longer considered legally "competent" to manage their own affairs. This involves a lawyer and can cost anywhere from 3-5 thousand dollars. There is also something in between called a "representation agreement." You should really get some more information from a lawyer but:

http://www.cba.org/BC/public_media/health/427.aspx

has some useful information. If you use the lawyer referal service you can get a 1/2 hour initial consultation for $25. Hope this helps and good luck!

 

[single malt]

Power of Attorney

I assume that each province has different procedures, my family lives in Alberta. A few years ago my father gave me a power of attorney document prepared by his lawyer. I am so very thank-ful he had the foresight to have it done. I had to put it into force this past February, there was a page for medical sign off attached, and i took it to one of his doctors, who for a fee of 60 dollars filled in the form. I then took it to the various financial institutions, did some minor paperwork, and am now responsible for his financial affairs. You hear the stories of seniors being taken advantage of, and my father could be a case study. He was dispersing funds to some questionable people. That has come to an end with me writing the checks.
It is well worth the cost of 4 to 5 hundred dollars to have a Power of Attorney document prepared, so much hassle is eliminated.

 

[HB40]

Can somebody confirm...firstly, do both people have to be present in front of the lawyer to do up both documents? Reason is...a relative told me that they had named me as a Power of Attorney for them, but I never went to a lawyer to sign anything, etc.

Second, is it as bad as my friend was saying....if you don't have these documents, your family basically has no recourse for your needs should something happen to you.

I filled out one of those personal will kits and did not need a lawyer witness or present. There is a section for power of attorney and again you don't need lawyers. You do need a witness of some kind to sign the document as such but I'm sure no lawyers are needed, kind of the purpose for those personal legal kits that are offered.

I also have the power of attorney for my mother. I never signed anything but with a verbal agreement and being listed on her documents it is legal. Not sure what recourse people have if paperwork isn't in order but from the horror stories I've heard it sure seems like a good idea.

 

[bjluver]

Second, is it as bad as my friend was saying....if you don't have these documents, your family basically has no recourse for your needs should something happen to you.

What you have to realize is that if and when that person gets to the point where they can no longer manage their "day-to-day" affairs (ie. washing, dressing, and feeding) then simple things like paying bills or making basic medical decisions become a REAL hassle if you do not have a POA in effect. Once again, I recommend that you and the person involved at least talk to a lawyer to get some more information specific to your needs. Things like real estate transactions need to be specifically allowed as does whether or not the POA remains in effect should the person giving the POA becomes mentally "incompetent" from a legal point of view.

You should also be aware of some of the limitations of both a POA and Representation Agreement. For example, if you have either a POA or RA for a person, you may not necessarily be able to "fully" protect that person. This is because the law still considers the person giving the POA or RA to be of "sound" mind when doing so. If the POA or RA is to remain in effect should the subject not become of "sound" mind (in a legal sense) then this must be specified with an "enduring" clause. So this means that if you had a POA or RA and the person you were looking out for gets scammed by making a bad investment or overly generous gift to another relative then there may be no recourse unless you can prove that the person was not of "sound" mind when doing so. The other extreme is when you are appointed committee for a person and the subject is not considered mentally competent in the eyes of the law. This means they would not be allowed to do things such as withdraw money from their own bank account.

This information is specific to BC and laws surrounding adult guardianship do vary from province to province as one poster pointed out.

 

[Thatotherguy]

I filled out one of those personal will kits and did not need a lawyer witness or present. There is a section for power of attorney and again you don't need lawyers. You do need a witness of some kind to sign the document as such but I'm sure no lawyers are needed, kind of the purpose for those personal legal kits that are offered.

I've dealt with many, many estate accounts, and I'd like to very strongly suggest that if you're thinking about using one of those personal will kits, don't! Every single time I've seen a will made up using one of those kits, I've been able to tell that if it were challenged in court, it wouldn't hold up. The problem is that people don't understand the specific legal language well enough to make sure that what they mean to say is what the will actually portrays. Luckily, in most cases I've dealt with there weren't any disputes, so the wills were sufficient. In the few cases I've seen where there were disputes, the wills were basically thrown out as being flawed.

If you plan to use one of these will kits, fill it out and then go to an estate lawyer and say "this is my intent for my will, please make up my actual will based on this." Unless you're actually very experienced with estates, in which case you'll probably know how to write a will using one of the kits that actually would hold up in court.

 

[carefulone]

Powers of Attorney et al Part 1

1) Living Wills have no legal effect in British Columbia. They may have value, however, as a communicative tool;
2) You can do a Power of Attorney and have it witnessed by someone other than a lawyer, notary public or other commissioner for taking affidavits in British Columbia, but in those circumstances, the Power of Attorney will only be valid for use with certain items and matters (title to land, for example, couldn't be dealt with). The other problem with using someone other than a lawyer or notary public as the witness, is that banks, government agencies and others are used to seeing a lawyer or notary public witness, and may be reluctant to honour something different;
3) It is not necessary to have the Attorney in Fact sign at the same time or before the same witness. There is a related document (a Statutory Declaration) that is often attached to or printed on the back of the Power of Attorney that does require the Attorney in Fact's signature, before a lawyer or notary public as witness, but:
a) technically speaking, that Statutory Declaration is only required to deal with certain types of matters and assets (land again); and
b) the Statutory Declaration can be signed by the Attorney in Fact before any lawyer or notary public, and it can be signed later; however
c) banks, government agencies and others who deal with Attorneys in Fact using Powers of Attorney are so used to seeing a signed and witnessed version of that Statutory Declaration they will probably be suspicious if an Attorney in Fact tries to use the Power of Attorney before it is signed;
4) Powers of Attorney are very old legal instruments that were originally commercial in nature. They are still used frequently for commercial purposes, but most likely the ones discussed here are the ones being used for personal purposes. For those to remain in effect during the donor's subsequent mental incapacity, the Power of Attorney must indicate that on it's face - it must be an "enduring" Power of Attorney.

carefulone

 

[carefulone]

Powers of Attorney et al Part 2

continuing on ...

5) Since the early 1990s in BC, in addition to doing a Power of Attorney, someone can also do a Representation Agreement. Representation Agreements were originally intended to replace personal Powers of Attorney but due to the fact that they are both more complex than Powers of Attorney, and are in fact agreements, the BC government eventually decided to allow Powers of Attorney to continue to be usable for individuals;
6) Representation Agreements are more flexible, in that they can include detailed conditions for use, but their biggest advantage is that in addition to providing for delegated authority over financial and legal matters, the legislation also permits binding delegation of the authority to make health decisions or personal care decisions. For many people, the combination of a Power of Attorney (1-2 pages, for legal and financial matters) and a Representation Agreement (12-20 pages, for health decisions and personal care decisions) makes the most sense;
7) Both Powers of Attorney and Representation Agreements are exceptionally powerful documents that, in the wrong hands, can be abused. Some types of each can only be effective if witnessed by a lawyer and, in the case of the Representation Agreements, only after a lawyer has advised on their effect.

carefulone

 

[carefulone]

Powers of Atorney et al Part 3 (the last one, I promise)

continuing on further ...
8) a lawyer or notary public who practises in this area should be consulted. While it is true that there are legal issues of some complexity that can arise, the biggest reason for getting professional help is that the lawyer or notary public is more likely to know what can go wrong, and how to deal with it. Their biggest service is that they know what to ask ahead of time, in order to prepare what is needed, and explain how to use it;
9) The kits that are available aren't bad as a means of studying ahead of time what might be relevant or required, but they are a recipe for disaster if you intend to rely solely upon them. For standard (not living) Wills, this is even more important, because the law can be very very complex in this area, and the consequences of even a simple mistake can be terrible;
10) The costs of obtaining legal help aren't necessarily all that high, and sometimes can be similar or even less with a lawyer than with a notary public. As notaries public are only authorized by law to draw "simple" Wills, a lawyer might be the only option available, if circumstances are slightly complex (extended families, out-of-province assets, disabled beneficiaries, etc.). The cost of a properly prepared Will, Power of Attorney or Representation Agreement will certainly be less than the cost of trying to fix problems that arise because the original work was inadequate.

Remember, this is all BC specific.

There, that should be enough.

carefulone