As a caregiver, you may have to manage your loved one’s money and property. But before being able to pay bills, withdraw money or sign documents, some financial institutions and other organizations will ask you to prove that you have the right to carry out these transactions on behalf of your loved one. A power of attorney signed by your loved one could save you time and energy.
What is the purpose of a power of attorney?
A power of attorney is a document in which your loved one appoints you as a mandatary to act on their behalf in certain circumstances. Generally speaking, it gives you the power to manage your loved one’s money, property and affairs, and to take all the steps needed to perform these duties. For example, you may have to cash cheques for your loved one, pay their bills or sign a lease on their behalf. You should always have the power of attorney on hand when carrying out transactions for your loved one, because you may often be asked to present it.
A power of attorney can be drawn up for different situations. For example, the person you are assisting could sign a power of attorney because their affairs are too complicated for them to manage, they are out of the country, or they have limited mobility.
A power of attorney can be general or specific. Your loved one may give you some leeway in managing their affairs or they may limit your role to a few very specific tasks. In the power of attorney, your loved one may give you the right to pay their bills, but not to freely manage the money in their bank account.
As a caregiver, you must respect the limits imposed by the power of attorney. You must always act honestly and in the best interests of your loved one. You must also act with prudence and diligence and not put yourself in a position of conflict of interest when managing your loved one’s affairs.
Before drawing up a power of attorney
It’s important to talk to your loved one to understand their needs and express your own. Before you sign anything, you and your loved one should answer certain questions:
- Should the power of attorney be general or specific to certain tasks?
- Will you be the sole mandatary? Or should the tasks be divided among several people?
- Will you be paid?
If the situation is more complicated than you thought, you can always seek the advice of a notary or a lawyer.
Being capable of signing
Before signing the power of attorney, the person you are assisting must have all their decision-making abilities. This means that they must understand the document and be able to give their free and informed consent. They cannot sign a power of attorney if they are incapacitated. If this is the case, you should consider a tutorship or a homologated protection mandate.
Types of power of attorney
A power of attorney can be written or verbal, but a written version is always preferable. If you are asked to prove that you are indeed representing your loved one, you will have a written document as proof.
There are two types of power of attorney: a power of attorney prepared by your loved one and a notarized power of attorney.
A power of attorney prepared by your loved one
This power of attorney does not require the help of a professional. Your loved one can write it by hand or on computer and it must include the following information:
- their name and address,
- your name and address if you are the mandatary,
- the names and addresses of the people who will replace you if you can no longer act as the mandatary,
- the duties you will carry out (the tasks, limits and conditions),
- your payment as the mandatary, if applicable,
- the duration of the power of attorney,
- the date and place of signature of the power of attorney,
- their signature and yours.
This type of power of attorney is easy to draw up and does not involve any fees. But be careful: it may not be accepted everywhere. Some organizations will not accept a written power of attorney prepared by the person you are assisting. You may be asked to come back with a notarized power of attorney.
A notarized power of attorney
A notarized power of attorney is prepared by a notary according to your loved one’s instructions. Unlike a power of attorney prepared by your loved one, this type of power of attorney involves fees, but your loved one will have access to the advice of a legal professional. Some situations are complex and the power of attorney must be adapted.
A notarized power of attorney is generally accepted everywhere, but some financial institutions may also ask your loved one to fill out their power of attorney form for banking.
Cancelling your power of attorney
A power of attorney can be temporary and include an expiry date. But whether or not there is an expiry date, your loved one can terminate the power of attorney at any time. There are other situations in which you can no longer use the power attorney.
You resign as mandatary
If you can no longer act as mandatary, you can resign at any time. You do not have to justify your reasons for resigning: overwork, exhaustion, moving, health problems, etc. If the power of attorney appoints you as the mandatary without designating someone to replace you, your loved one must prepare a new power of attorney with a new mandatary. If the power of attorney designated a person to replace you as mandatary and they accept the position, the power of attorney can still be used.
Your loved one becomes incapacitated
You can only use the power of attorney if your loved one is capable. In case of incapacity, a power of attorney is no longer the appropriate mechanism for looking after your loved one. Instead, you should have their protection mandate homologated or, if they don’t have one, establish a tutorship for them.
Note that between the date on which the incapacity is declared and the date on which the protection mandate is homologated or the tutorship instituted, you can exceptionally continue to use the power of attorney.
Your loved one passes away
If your loved one passes away, the power of attorney can no longer be used. The liquidator appointed in a will is responsible for managing your loved one’s property. If there is no will, the heirs will choose the liquidator.