It is not the law that your spouse and/or children automatically have the right to make financial and legal decisions on your behalf if you lose mental capacity. Whilst they may have a say in other decisions, there can be disputes about what decision should be made and who should make it.
What is a Power of Attorney?
This is a legal document which appoints a trusted person or persons to deal with or manage financial and property decisions on your behalf. In order to execute this document you must be over the age of 18 years and have full legal capacity.
An example of when an Enduring Power of Attorney would be necessary is where your mother has suffered dementia and her General Practitioner believes she is no longer able to understand the effect of legal documents and has lost her legal capacity. You want to put your mother in a privately run care facility but they require a substantial monetary bond to be paid to do so. You do not have the funds to cover this bond and do not want her in a state run nursing home. You believe that putting her in this type of care is the best thing for your mother and you realise that in order to obtain this monetary bond you need to sell her property. You will be required, in this instance, to produce a valid Enduring Power of Attorney to the Lands Titles Office in order to deal with/transfer your mother’s property to a purchaser.
What is an Advance Care Directive?
An Advance Care Directive can specify your preferences for personal issues relating to your medical care and welfare and can allow you to appoint a substitute decision maker on your behalf. Advance Care Directives replace Powers of Guardianship and Medical Powers of Attorney.
A Power of Attorney and an Advance Care Directive is automatically ineffective on your death and does not overlap any authority granted in your Will.
The greatest benefit of these powers is to enable others to make decisions on your behalf after you have suffered a legal incapacity (perhaps in a coma in hospital or suffering a degenerative disease such as Alzheimer’s).