A power of attorney is a legal document that lets you appoint someone to make decisions on your behalf if you're unable to do so. This article cover the two types of power of attorney - property and personal care - what they involve, who you can name, and key considerations when making your choices.
What is a Power of Attorney?
There are two types of power of attorney commonly used in estate planning.
Attorney for Property
This is the person you appoint in your Power of Attorney for Property document (also simply known as Power of Attorney) to manage your financial affairs and property. Their responsibilities may include:
Paying your bills
Managing bank accounts and investments
Buying or selling property
Handling your taxes
A power of attorney document doesn't grant the ability to legally care for your dependents. However, your attorney can continue supporting your dependents (like paying for school or activities) by managing your funds. To assume legal care, they would need to apply to the Family Court for guardianship.
Your attorney for property can also have permissions to act on your behalf in your business, provided there are no stated restrictions. They can act as an owner of your shares, which includes voting, appointing, or conducting business as the owner would. However, they cannot perform director duties directly. In that case, the remaining directors can continue to act, or, the attorney as a shareholder, can appoint themselves or someone else to act (with shareholder approval, if applicable. For legal clarity in complex business situations, we recommend consulting a lawyer.
Attorney for Personal Care
This is the person you appoint to make decisions about your health and personal well-being when you're unable to. Their responsibilities may include decisions about:
Medical treatment decisions
Housing and long-term care placements
Nutrition, hygiene, and safety
Your power of attorney documents are legally binding and only grants the powers specified within it. Your attorney must follow your stated wishes and cannot override them.
Provincial Terminology Equivalents
British Columbia: Attorney (property), Representative (personal care)
Alberta: Attorney (property), Agent (personal care)
Manitoba/Saskatchewan: Attorney (property), Health Care Proxy (personal care)
Nova Scotia: Attorney (property), Delegate (personal care)
Quebec: Attorney (property), Mandatory (personal care)
Who can be your Attorney?
To act as your attorney, a person must:
Be the age of majority in your province
Be mentally capable
Not be someone you pay to provide healthcare or residential support (for Personal Care POA)
You can name:
Family members or friends (common choices include spouses, adult children, or siblings)
Professionals such as a lawyer or accountant (fees may apply)
Your attorney does not have to live in the same province, but you should consider the practical aspects of their ability to act on your behalf.
You can name the same person to act as both your attorney for property and for personal care - or choose different people for each role. Your attorney for property and/or personal care can also be the same person as the executor you appoint for your will.
Can I Name More than One Attorney?
You can appoint co-attorneys to share responsibility, but currently, Willful does not support assigning co-attorneys. Instead, you can name backup attorneys for each role. We recognize that co-attorneys can help share the workload and decision-making. However, our legal advisors recommend naming a single attorney to ensure clarity and reduce potential conflict. Having one decision-maker is often more efficient in critical or urgent situations.
Manitoba-specific note: Under the Homesteads Act, your spouse cannot sell your home without your consent, even in an emergency. To comply with this law, Willful requires that you name a backup attorney in Manitoba. This is optional in other provinces.
Special Considerations when Choosing an Attorney
When deciding who to appoint, consider the following:
Trustworthiness: They’ll have access to sensitive financial or health information.
Location: An attorney who lives nearby may be better positioned to handle urgent matters.
Willingness: Always ask the person in advance. They should understand and accept the responsibility.
Suitability: Choose someone responsible, organized, and capable of making decisions that are possibly difficult.
Skills: For property attorneys, financial literacy is valuable; for personal care, empathy and understanding of your values are key.
If you don’t have a power of attorney and become incapacitated, a family member may need to apply to court to be appointed as your decision-maker.