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Giving power of attorney isn’t giving up power

September 2011

How many of us, as we lay beside the pool or vacationed on the beach this summer, wondered why we always seem to be so busy during the rest of the year, or thought about how nice it would be to have someone else concern themselves with those little chores that are a part of everyday life.

There are times when it may be convenient to authorize someone else to act for us. We may be a Florida snowbird or otherwise unavailable, bills need to be paid, decisions may have to be made with regard to investments, a cheque may have to be endorsed, we may need a short-term loan, or we may need to retrieve a document in our safety deposit box. The question then arises: Is it a good idea to give a power of attorney to another person to do these things for us? After all, we are perfectly capable of doing these things for ourselves, it’s just that it might be inconvenient. To answer, we must understand the difference between the power of attorney and the mandate in case of Incapacity. We should also look at the standard power of attorney issued by the banks.

The Oxford English dictionary defines a power of attorney as the authority to act for another person in legal or financial matters. In other words, it is through the power of attorney that you give another person the authority to act for you. The Quebec Civil Code uses the term “mandate” and defines mandate as an agreement whereby Person A consents that Person B has the power to represent him in his dealings with a third party. The document that sets out the power that is given is referred to as the power of attorney. This document represents a sharing of power between two people. The person giving out the power does not lose that power, he is rather permitting someone else to exercise it as well as himself. The most familiar power of attorney is the one given out by the bank. It is through this document that one person gives another, often a spouse, child or other relative, the power to act on his behalf in his dealings with the bank. When you sign a power of attorney with the bank you are giving another person the power to sign and deposit cheques, borrow money, enter your safety deposit box and deal with your investments. It is therefore very important to choose someone you trust completely. It is also crucial to remember that just because you are permitting someone else to do these things for you does not mean you cannot do them yourself. Furthermore, the person to whom you give the power is meant to do these things for you and on your behalf. Giving the power to another person to act on your behalf does not mean that you have given up the power to act for yourself. You still retain your autonomy. As long as you have capacity no one has the right to use your money for their own purposes, to sell your home or other possessions, to change your living arrangements, to use your credit cards, or to make decisions regarding your health care without your consent.

For someone to act beyond the powers you have granted is abuse. Unfortunately we hear more and more stories of such abuse especially in cases involving seniors. The abusers are people trusted by the person granting the power of attorney; the person granting the power of attorney is being betrayed by those he trusts. There are too many cases coming to our attention for this problem to be ignored. We have the example of the man whose wife died. He was illiterate and it was she who had always managed the household and done the banking. After her death, the husband had difficulty with administrative tasks.

A female friend suggested he come and live with her and give her a power of attorney to access his bank account. This he did willingly. She used his debit card and prepared cheques for him to sign. She used some of his money for their joint needs and much of his money for her own. It wasn’t until he was advised by the bank that his account was overdrawn that he became aware of what had been happening. He sued and won judgment against her in excess of $75,000.

Remember that the fact you may have had a heart attack or stroke, or broken a hip or had a knee replacement, or have a chronic illness does not deprive you of your basic right to make decisions for yourself. If you do need someone to act on your behalf give them a power of attorney to do so but limit it. You may need someone to have access to your bank account to pay bills but not to take out large sums for their own purposes. You may need someone to take care of your house while you are away, but not to sell it or mortgage it. The bank should alter their power of attorney to suit your specific needs. All you need do is ask. There may come a time when you are no longer capable of managing your affairs or making important decisions and to protect yourself in case of such eventuality you should have a Mandate in Case of Incapacity. That mandate will not have limits but it also will not take effect until you can no longer act for yourself.

So long as you retain capacity, you owe it to yourself to keep an eye on your affairs and never be afraid to make your own decisions. You have the right to revoke any power of attorney you have given at any time and if you see that it is being abused you should cancel it immediately.



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