Planning for Incapacity

Planning for incapacity

The final component of your estate plan should address potential situations where you may become physically or mentally incapacitated. This is achieved by creating an enduring power of attorney. Without an enduring power of attorney, your attorney (not necessarily your lawyer or notary) cannot act on your behalf during a period of incapacity until they receive court approval.

For Quebec residents, the enduring power of attorney document is referred to as a mandate (in anticipation of incapacity). In Quebec, a notary or lawyer can draft mandates. It is important to note that all mandates terminate if a court-ordered curator or tutor is appointed or the persons you appoint die before your death. You can revoke a mandate at any time, so long as you are mentally competent.

Please choose from the following links for more information on planning for incapacity:

Power of attorney

The most common form of this document, a financial power of attorney, is also referred to as a power of attorney for personal property or financial decisions. The authority that you give the individual acting as your "attorney" (for Quebec residents, a "mandatory") can be either limited to specific activities or assets, called a " limited power of attorney," or can provide the attorney with wide-ranging control of your financial affairs called a "general power of attorney."

A power of attorney may be temporary or of indefinite duration, but in all cases the authority provided by this document ends upon your death or incapacity. The appointment of a committee or guardian by a court order will also terminate a power of attorney.

Enduring power of attorney

It is important to note that the power of attorney document (general, limited or financial) will not be valid if you become mentally incapacitated unless it specifically states that the attorney's authority is to be maintained under this circumstance. Additional wording is necessary to ensure the document is considered enduring in subsequent mental incapacity. This is commonly referred to as an "enduring power of attorney."

Your power of attorney/mandate should be created with the assistance of a lawyer or notary to ensure it accurately reflects your wishes.

For British Columbia residents, there is now a representation agreement that will allow adults to appoint representatives. If the adult should lose mental capacity, these representatives can have authority to make decisions about the person's legal affairs, financial affairs, personal care and health care needs if necessary.

The representation agreement is an additional document that can be utilized alone or in conjunction with an enduring power of attorney.

Living Wills

The provinces of Manitoba, Ontario, Quebec and Nova Scotia all have legislation allowing for the creation of what is commonly referred to as a living Will. Depending on the province, a living Will may also be referred to as a power of attorney for personal care, a mandate, a health care directive or proxy, an advance directive or a representation agreement.

The purpose of a living Will is to provide instructions regarding your medical care if you were to become incapacitated and unable to state your wishes. This document may indicate the type of treatment you may or may not wish to receive. A living Will should be created with the assistance of a lawyer or notary and discussed with your family physician and family members.

Pre-planned funeral arrangements

When funeral arrangements are pre-planned there is considerably less potential for stress, confusion and mistakes. Making arrangements for a loved one in a rush can cause additional pain and costs at a difficult time. For this reason, more and more Canadians are considering pre-planned funeral arrangements as part of their estate plan. This allows for family input, minimizes the chances of additional costs and ensures your wishes are followed without burdening family members.

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