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What is a Power of Attorney?
A Power of Attorney is a legal document that allows another person to look after your legal and financial affairs. The person who gives the power is called the donor and the person who gets the power is called the attorney. The Power of Attorney is a written document that must be signed by the donor in front of a witness. The witness must also sign the document.
You can choose anyone as an attorney, as long as they are at least 18 years old and mentally capable. To give the power of attorney, you as donor must also be at least 18 years old and mentally capable.
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What is an Enduring Power of Attorney?
An Enduring Power of Attorney is a Power of Attorney that continues even if the maker of the Power of Attorney becomes incompetent.
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Who can be named as an attorney in a Power of Attorney Document?
Anyone who is 18 years of age or older and is mentally capable can be named as an attorney. An attorney under an Enduring Power of Attorney also cannot be an undischarged bankrupt.
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Who can be a witness for a Power of Attorney?
Anyone except for the attorney named and the spouse or a common-law partner of the donor can be a witness for a general Power of Attorney. For an Enduring Power of Attorney, the witness must be one of the following:
- An individual eligible to solemnize marriages
- A judge or justice of the peace
- A licensed physician
- A lawyer or notary public
- An RCMP member
- A municipal police officer
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Can a Power of Attorney still be drafted if the donor is physically unable to sign the document?
Yes. In such a case, the donor must direct someone else to sign for him/her and acknowledge the signature in the presence of a qualified witness.
The following can be witnesses: a judge, justice of the peace, doctor, notary public, lawyer, or police officer.
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What are my duties under a Power of Attorney?
As an attorney you are supposed to conduct the individual’s affairs as you would your own, using prudence, discretion, and intelligence. A greater standard of care is imposed on attorneys who are compensated for their work. They are to use the judgment and care that an individual who is involved in the business of managing the property of others would use.
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Am I entitled to be paid for acting under a Power of Attorney?
You are not automatically entitled to be compensated for your work as an attorney. If the Power of Attorney document does not set out any rate of compensation you could request fair and reasonable compensation from the court.
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My brother and I were both named as attorneys for a family member, but it is not clear whether we are supposed to act together or in succession. How should we act?
If the Power of Attorney document does not indicate that attorneys are to act together, they are presumed to act in succession. The person named first in the Power of Attorney has the right to act.
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I have concerns about my attorney and want to appoint someone else. Can I cancel my Power of Attorney?
You can revoke your Power of Attorney in writing at any time as long as you are competent. You may want to notify all of the institutions and organizations that may have a copy of the Power of Attorney document and let them know that it has been revoked.
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When does the Public Trustee become involved in decision making?
The Public Trustee becomes involved in looking after people’s personal and financial affairs or estates in the following ways:
- Looking after the financial affairs and making personal decisions for people who are not mentally capable of doing so
- Looking after the financial affairs of mentally competent people who have given the Public Trustee a Power of Attorney
- Looking after the estates of people in Manitoba who have died with no one else capable or willing to look after their estates
- Looking after money held in trust for people under 18 years of age
The Public Trustee charges fees for these services.
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What is a committee?
When a person becomes mentally incompetent and loses the legal capacity to look after legal and financial matters, a committee may be appointed by the Court, or, in the case of the Public Trustee, by the Chief Provincial Psychiatrist.
A family member, friend, or trust company wishing to assume the responsibility for the affairs of a mentally incompetent person must apply to the Court for an Order of Committeeship. Although the application does not usually require a Court appearance, the services of a lawyer are usually needed to prepare the required documents.
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I have been acting under a family member’s Enduring Power of Attorney, but now the Public Trustee has been appointed as committee. Can I continue to act?
Maybe. The Public Trustee will investigate whether the Enduring Power of Attorney was properly executed and whether you have properly managed the donor’s affairs. If they are satisfied that you have served the donor’s best interests and will continue to do so, they can allow you to continue to act. If the Public Trustee has concerns and decides to act, the Enduring Power of Attorney will end automatically.
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My mother has been declared incompetent and I am concerned about the person she has appointed as attorney. Is the attorney accountable to anyone besides my mother?
The attorney is required to account to the person who was named in the Power of Attorney document as a recipient of an accounting. If there was no one named in the document, then the nearest relative is entitled to receive an accounting on an annual basis. If the spouse is incompetent or deceased, then the next nearest relative could request the accounting. There is no obligation for the attorney to act on the information that they receive.
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Can the attorney named in my Power of Attorney document make health care decisions for me?
No. Such power is given in another document, called a Living Will or Health Care Directive.