There are several ways of planning for incapacity. Our focus in this brief write up will be on the two basic ways of planning for incapability, these are through a power of attorney and by a representation agreement.
Power of Attorney
A power of Attorney is a document under which an adult (the “donor”) grants another person the power to administer or manage the donor’s financial and legal affairs. At common law once the donor is incapable, the power of attorney ceases to be usable, to remedy this defect the provincial government introduced an “enduring power of attorney” which takes care of when the donor becomes incapable.
Please see the questionnaire for further details.
If you need further details about a power of attorney, please do not hesitate to contact our office.
Representation Agreement or the Living Will as some would like to call it.
The Representation Agreement address a fundamental limitation of powers of attorney, allowing an adult to give another person (the representative) the power to make health care and personal decisions for them (in addition to the routine management of the adult’s financial affairs).
There are two types of Representation Agreements, a standard agreement (under s. 7 of the Representation Agreement Act), and a “non-standard” (or “enhanced”) agreement (under s. 9). The Act defines the level of capacity needed to execute a standard agreement under s. 7. Section 8 of the Act provides that an adult may make a s. 7 agreement even though they are incapable of making a contract or managing their personal or financial affairs. This diminished level was created to allow an adult with less than full mental capacity to enter into such an agreement; but a s. 7 agreement is limited in the scope of its authority. The enhanced agreement requires full mental capacity, but can be very broad in its authority.
For further details on Representation Agreement, please contact our office.