It can be difficult to discuss the prospect of serious illness or age-related cognitive decline with your parents, but it will be more difficult to handle health care decisions and financial matters if these conversations don’t take place in advance, while your parents have mental capacity to make a plan. Do your parents have enduring powers of attorney and personal directives? Do you understand the difference between the two, and the importance of having both an enduring power of attorney (“POA”) and a personal directive (“PD”) in the event of a parent’s incapacity? If you do not know the answers to these questions, you should read on for more info, or reach out to our team of experienced wills and probate lawyers in Calgary.
CALGARY WILLS AND PROBATE LAWYERS EXPLAIN THE DIFFERENCE BETWEEN POAS AND PDS
Your mom or dad may already have a last will and testament, but a will does not operate to protect your parent’s wishes while they are alive. Normally, when our Calgary lawyers draft a will, we also prepare an enduring power of attorney and a personal directive. All three legal documents are vital parts of a solid estate plan, as each document has a different function and is effective at different points in time:
A last will and testament appoints an executor and sets out wishes for distributing property and assets on a person’s death. A will does not take legal effect until a person has died and can be changed at any point before the person’s death if mental capacity remains intact.
An enduring power of attorney appoints one or more individuals to act as “attorney” for the purposes of making financial decisions and handling property on behalf of a person who is still alive. A POA can be drafted to take immediate effect as soon as it is signed (an “immediate POA”) or it can be drafted so that it only becomes effective under certain conditions, for example, once mental incapacity has been declared by a doctor (a “springing POA”). A POA can be revoked at any time if mental capacity remains intact.
A personal directive appoints one or more “agents” to make decisions regarding medical care and other personal matters on behalf of a person who is still alive but has become mentally incapable of making such choices on their own. A personal directive does not take effect until a capacity assessment is performed and finds a person incompetent to make decisions on their own. A PD can be revoked at any time if mental capacity remains intact (or if a later assessment determines that a previously incapable person has regained capacity).
As can be seen, each of these documents deals with a different aspect of a person’s affairs and comes into effect at different times. Each gives a very specific power to act to an appointed person. An attorney of a POA cannot make health or personal decisions, an agent of a PD cannot make financial decisions, and an executor appointed in a will does not have power to act while the will-maker is alive.
CALGARY LAWYERS EXPLAIN THE IMPORTANCE OF PREPARING A POA AND PD NOW
Illness or injury can leave your parent suddenly unable to communicate. Or your parent’s cognitive abilities may slowly decline over time due to dementia, Alzheimer’s, or other age-related health issues. Regardless of whether incapacity comes about suddenly or slowly, it is too late at that point for your parent to make a POA or PD. If these legal documents are not in place, the process of getting the authority to make decisions on your parent’s behalf with respect to property and finances or health care is more complicated, expensive, and time-consuming and may require court proceedings.
WHAT CAN AN ATTORNEY OR AGENT DO ON THEIR PARENT’S BEHALF?
Here are some of the important matters that an attorney or agent can deal with if properly appointed under a POA or PD:
An attorney appointed under a POA can pay bills and do day-to-day banking on the parent’s behalf, and make major decisions regarding buying or selling the parent’s property, assets, and investments (unless the POA specifically restricts or limits any of those decision-making abilities). Consider the other important benefit that comes with an immediate POA, which does not require mental incapacity before it is effective. This would allow you to assist your parent with banking or other financial matters when they become frail or less mobile, but still mentally capable.
An agent appointed in a Personal Directive can make decisions for their incapacitated parent about which medical treatments or procedures will or will not be performed and can make decisions about living arrangements and other personal needs. The Personal Directive itself can specify instructions for health care including wishes with respect to resuscitation or ending life support, etc., or it can be more general, as your parent trusts that you will make decisions in accordance with the wishes they have expressed to you.
NOW IS THE TIME TO CONTACT A TOP CALGARY WILLS AND PROBATES LAWYER
Calgary’s First West Law LLP is here to provide professional services and trusted legal advice to you and your loved ones. If you are looking for a skilled wills and probate lawyer in Calgary for yourself or your parents, reach out to our legal team today. We are a full-service law firm and can assist with all aspects of estate planning, including preparation of enduring powers of attorney and personal directives and drafting wills. To request a consultation, we invite you to contact First West Law LLP today at 403-543-7750.