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Wills and Estates Planning... Why an Enduring Power of Attorney Now?

In other words, no Power of Attorney could mean no way to access funds to support the family, no way to raise funds for the family through loans or mortgages, no way to cash the paycheck or access the direct deposit of a pension, employment income or benefits, no authority to instruct the financial advisor, to name a few.  And now, add to that list no court to turn to address the problem. 

Mary Jane McGinty – April 2020

I have never been a big fan of Powers of Attorney.  The benefit of the Power of Attorney versus the potential for abuse seemed to weigh in favor of caution in most cases. I often concluded that leaving it in the hands of the Court was the lesser of two evils.  Times have changed and my view has evolved.  Particularly right now. 

What happens when you are physically or mentally incapable of making your own financial decisions?  There are only two possibilities.  The court can appoint a guardian to make those decisions for you upon being satisfied that it is necessary and that the person seeking the appointment as guardian is suitable and well intentioned.  On the other hand, if you have given someone your Power of Attorney, it is business as usual, without the need for further documentation or court intervention

The court process described above used to be relatively simple, so the alternative to a Power of Attorney was not unattractive. But the process was rendered far more difficult when the then existing  legislation was found to be unconstitutional and new legislation was passed.  With this change, the legislature raised the bar to obtaining an order for guardianship to the point where it takes substantial time and considerable money, things that are often in short supply when someone falls ill and becomes incapable of making financial decisions.

So, absent a Power of Attorney, one can only address the incapacity of a breadwinner, for example, with an onerous court process, which incidentally requires the participation of at least one physician.  One of the things COVID-19 has left in shorter supply than physicians that can take time for paperwork is Judges and Court staff that can take time for non emergent applications. Now, in this time of isolation, it is unlikely that an application for guardianship would rise to the level of importance that would earn the attention of the Court, despite the time, effort and expense.

In other words, no Power of Attorney could mean no way to access funds to support the family, no way to raise funds for the family through loans or mortgages, no way to cash the paycheck or access the direct deposit of a pension, employment income or benefits, no authority to instruct the financial advisor, to name a few.  And now, add to that list no court to turn to address the problem. 

As lawyers, we spend most of our time fixing problems.  Right now, a Power of Attorney can help you avoid problems, problems we might well be unable to fix at the present time.  It is easy and inexpensive. MDW Law is here to help you get this done now. Call us at 902.422.5881 or email info@mdwlaw.ca for further information and assistance. 

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Life Insurance... Legal 101

Tuesday, January 12th, 2021

Published by: Tara Miller, Q.C.

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