Power of Attorney

Most Personal Care Homes ask about whether a new resident has a Power of Attorney. If they do not, they generally refer the family to a lawyer. When we see the family, the conversation usually runs something like this...

“My mother has been paneled for the Care Home. They asked if she has a Power of Attorney. She has a Will, doesn’t that contain a Power of Attorney?”

The simple but unwelcome answer is, “No.”

A Will and a Power of Attorney are two completely different documents. A Will tells us what the person wants to do with the money and possessions they own at their death. Until death, it is nothing but a fancy piece of paper. Theoretically, the person who made the Will could tear it in half and revoke it with their last breath and it would never take effect.

A Power of Attorney, on the other hand, usually takes effect immediately and appoints one or more persons who can do things, usually of a financial nature, for and in the name of the person who made the Power of Attorney. A Power of Attorney, with one rare exception, only has effect while the maker is living. Once the person dies, the Power of Attorney dies with them.

“Okay then, give me a Power of Attorney for my mother?”

Sorry. A Power of Attorney is not something you can “get,” it is only something you can “give.” In other words, you mother would have to “give” you her Power of Attorney and, in order to do that, she must be mentally competent to give a Power of Attorney. If she is paneled for the care home, she may no longer have mental capacity. It may be too late for a Power of Attorney. If she can’t give a Power of Attorney, there are alternatives, however they involve more work and are more costly.

“How can I find out if she has capacity?”

The first step is usually to speak with her family physician. He sees her more frequently than her lawyer. He may refer her to a geriatric specialist for an assessment, although if she has been paneled, it is likely she has recently been seen by the geriatric specialist and, unless her main problem is physical, lack of capacity may be the primary reason she has been paneled. As lawyers, we are always interested in what her physician says, although it does not always finally decide the question of competence. The things a person must understand and remember to make a Power of Attorney are considerably fewer than they might need to understand and remember to be able to take care of themselves and to be reasonably safe living on their own. Every lawyer must make some assessment of whether the person he is speaking to is able to give instructions, although if there is any doubt it is usually resolved in favour of the client and, ultimately, a Court may be asked to rule on competence.

We cannot stress enough that people who are aging should make arrangements to give a Power of Attorney to a trusted individual or individuals while they can. The Care Homes almost always ask about Powers of Attorney and recommend them, however by the time the person comes to their attention, it is almost always too late.