—Are Powers of Attorney Enough? —

Caution:  This page contains GENERAL LEGAL INFORMATION ONLY. 
It is NOT LEGAL ADVICE nor a replacement for talking to a lawyer and getting legal advice about your case.    
The law can be complicated and the details of a case can be even more complicated!  There are exceptions for every rule. 
What you do not know can harm you.  Rely on general legal information AT YOUR OWN RISK.

Many people do quick Powers of Attorney when the do their Will. But is this enough?

We are all mortal and must face death eventually. With the advance of medical treatment, a growing number of us may find that the mind fails before the body. Someone is going to have to make decisions for us, when we cannot. So, what do we need?

I suggest our goals are:

• to chose our substituted decision-maker(s) ... to pick individuals that we trust
• to have our wishes and values respected, when someone makes decisions for us
• to ensure we are taken care of and our obligations met
• to ease the burden on our substituted decision-makers and make their work easier (and less costly)
• to avoid conflicts between the people who care about us
• perhaps, to send one last message to those we leave behind

The Powers of Attorney appoints the substituted decision-makers, but often does little else. We need more and so do the people we give ask to make decisions on our behalf.

Consider the following documents, in addition to a Will, a Power of Attorney for Property, and a Power of Attorney for Personal Care:

"Living Will"

A "living will" is a document giving instructions for personal care decisions, if and when you are no longer capable of making decisions yourself. It usually contains three parts:

• a proxy appointing a substitute decision-maker;
• instructions on the use of certain medical procedures in certain circumstances; and
• some wishes regarding your non-medical care.

These different parts of the living will have different purposes, audiences, and legal effects. I recommend dealing with these in separate documents (rather than in one document called a "living will"):

The proxy should be done in a Power of Attorney for Personal Care. This is a document that must be shown to various people and agencies to show the Attorney(s) has the authority to make decisions.

For the other parts of the living will, I suggest a Statement of Wishes and Values and an Advance Medical Instructional Directive.

Statement of Wishes and Values

This is your personal communication to your Attorney(s). The Attorney for Personal Care, in particular, must make decisions in keeping with your wishes as expressed prior to incapacity. Unless there is some dispute about a decision, who sees the Statement is up to the Attorney(s) to decide.

You should talk to your Attorney(s) about your wishes and values, but putting it in writing is a good idea - it can be referred to years after your discussion and it can be used if there is any dispute about the decision.

While mainly useful for personal care, it can be helpful for the property decisions that must be made.

Michaud Family Law can provide a practical form and can advise about its use and the options open to you.

Advance Medical Instructional Directive

This is your communication with the medical professionals treating you, as well as your Attorney for Personal Care. It instructs and authorizes, under certain circumstances, the withholding of "heroic measures" and other treatments intended to extend life. It is intended to give as strong a direction as you can (not merely give wishes to help the Attorney make decisions).

This should be completed in consultation with your medical advisor. It is technical. Some suggest that it is too hard to make a good decision, until you are faced with the reality of death or serious disabilities.

Michaud Family Law provide a form, based on the University of Toronto's Joint Centre for Bioethics form.

Guides to Attorney(s)

Provide a guide to your Attorney(s) about their duties and obligations. It reduces mistakes and the need to get advice from lawyers. It can re-enforce their obligations to follow your wishes. It is also useful for your proposed Attorney(s) to review this, before they agree to be your Attorney.

Michaud Family Law includes the guides to the Attorneys when we do Power(s) of Attorneys.

Funeral Arrangements

Arrangements about your funeral and disposition of your body will be made by the Executor of your Will. You can give instructions in you will or in a letter to your Executor. A letter is more flexible, as it does not require you to formally change your Will. You may need to change your instructions if, for example, you make arrangements in advance.

The more you can decide now, the less there is for others to sort out when they are dealing with the emotional impact of your death.

Organ Donation

This can have a life changing impact on other people. I urge you to think about it and make a decision. If you chose to donate, register this on the Ontario government database. (Signing a card and putting it in your wallet is not enough.) You can register online at:

http://www.ontario.ca/page/collection-personal-information-organ-donor

You should discuss your decision with your love ones, to make sure they understand and respect your decision. This can avoid trouble when the time comes.

Michaud Family Law sets out your options in our Statement of Wishes and Values form.

Documents Regarding Minor Child(ren)

If you share custody with someone who can continue to care for them, arrangements regarding the child(ren) are straight forward. If you believe someone other than a biological / adoptive parent should have custody, then things get more complicated.

In a Will, you can appoint a temporary guardian of your child(ren), but at most it will be good for 90 days. Sooner or later, a non-parent will have to get a court order. (Sometimes even a biological or adoptive family will have to go to court to enforce their authority.) You can help with this, by providing your evidence as to who should (or should not) have custody of your child(ren) and the what you base this on.

Michaud Family Law can help. We are experienced in custody and access matters. We can prepare a sworn statement that will give you as much of a voice in this matter as possible. We can advise of your options, especially if you anticipate a dispute over custody.

You may also consider preparing a letter to the person you want to take care of your child(ren), to give information about your child(ren) and your advice for their upbringing.

A Letter Regarding Pet(s)

In law, pets are considered property. The best interest of the pet is not an issue to be considered by an Executor of a Will or to an Attorney for Property . (An Attorney for Personal Care might consider pets as part of their duty to look after you. )

But to many of us, pets mean more than that. We want them looked after properly, if we can no longer do it.

To decide who gets your pet(s), give the gift of your pet(s) in your Will. (Consider dealing with pet(s) without naming them, so that it will still apply if you pet(s) change.)

Consider doing a letter to the person you want to look after your pet(s), to give information about your pet(s) and your advice.

Michaud Family Law can discuss this with you. As a pet owner, these are decisions I must make too.

Information Sheet

There is all sorts of financial and personal information that Executors and Attorneys need in order to do their job. Consider putting the key information in one form, all together. This can save a lot of work and reduce the risk of mistakes.

You can indicate where your important documents can be found and who are they key people to talk to about making arrangements.

Consider, for example, Facebook. Without the password it is very hard to change the entries or even shut it down.

Michaud Family Law has a form and some advice.

Messages to Love Ones & Others

Sometimes, people do not have a chance to say goodbye. (Perhaps we should treat people as if this is our last day on Earth.) You can write a letter or film a video to say goodbye. It can be the most important thing you do of all these preparations.

Remember the caution given at the top of this page.
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