The Power of Attorney

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A power of attorney, also known as a mandate, is a contract that enables you to have a trusted person (or persons) manage your affairs.

Important! This article is not about the protection mandate (previously known as a mandate in case of incapacity).

Situations in which a power of attorney may be helpful

The person who accepts to manage your affairs (officially known as the “mandatary”) acts on your behalf and performs the duties you set out in the power of attorney.

Here are some situations in which a power of attorney may be helpful:

  • You are too busy to manage your affairs.
  • You will be away for some time.
  • Your affairs are complicated, and you would like to have a family member, friend, or a professional manage certain tasks for you.
  • You are injured or have difficulty going places due to a physical limitation.

Having your mandatary manage one or more tasks

You can ask your mandatary to carry out a specific duty for you, such as signing a lease or selling your house.

Or, you can ask them to manage several tasks, such as doing your banking, paying your bills, and dealing with your Internet service provider.

Making a power of attorney

You must be of sound mind

You must be of sound mind and capable of providing consent when you sign a power of attorney. In other words, you must understand what you are signing and must have the mental capacity to manage your own affairs. Otherwise, the power of attorney is not legally valid. In general, this also applies while your mandatory is carrying out duties for you.

A power of attorney signed by a person who is not of sound mind or who did not understand what they signed would not be legally valid. The same goes if the person signed the power of attorney under pressure rather than consenting freely to it.

In general, a power of attorney can be verbal or written. However, in some cases, it must be in writing, such as to withdraw money from a bank or to sell a house.

Drawing up a power of attorney

You can draw up a power of attorney on your own or with the assistance of a notary or lawyer.

A power of attorney can include the following:

  • your name and address
  • the name of the person who will be carrying out the duties (the mandatary) and their address
  • the duties they will carry out (the tasks, the limits, and the conditions)
  • what you will pay the mandatary, if you plan to pay them. (Even if you will not be paying them for their services, they are entitled to be refunded for any expenses required to carry out their duties.)
  • the duration of the power of attorney (for example, six months; until a certain date)
  • the deadline for carrying out certain duties
  • the date and place of signature of the power of attorney
  • your signature and the mandatary’s signature

Choosing your mandatary

Any adult can act as a mandatary. However, it is important to name a person (or persons) in whom you have confidence. This might be, for example, a family member or a friend.  

A professional (for example, a notary, lawyer, or accountant) can also act as your mandatary. This may be particularly useful if your affairs are complex. If a professional serves as your mandatary, you would have to pay their fees.

Professionals must generally respect rules of conduct and their work is typically overseen by professional orders or associations. This provides you with some added protection.

Tips for preventing abuse

Unfortunately, even when we choose someone in whom we have confidence, abuse can happen. Here are some tips to help prevent it.

Consider whether a power of attorney is really necessary

There may be other ways to manage your affairs that offer more control. For example, you could arrange to pay your bills through automatic deductions from your bank account. You could get more information about this wherever you do your banking.

Place clear limits on powers

You can be very specific about what your mandatary is allowed (and not allowed) to do on your behalf. If they do things that are not set out in the power of attorney, they can be held responsible for their actions unless you decide to approve them.

Limit bank withdrawals

You can place a strict limit on the amount your mandatary is authorized to withdraw from your bank account, for example, $2000 per month.

Include an expiry date

You can indicate a date at which the power of attorney will no longer be valid. At that point, you can decide whether you wish to make a new one with the same person.

Ask your mandatary to do an initial inventory of your property

You can ask your mandatary to do an initial inventory (list) of your property before carrying out any of the duties mentioned in the power of attorney. Your mandatary can provide you with a copy and also give one to another trusted person of your choice.

You can also ask your mandatary to report regularly to another trusted person. That person will provide oversight of the mandatory’s actions and can act in case of any problem.

Ask for regular written reports

You can ask your mandatary to provide written reports on all transactions. This could be every month, for example.

Keep an eye on your affairs

You can regularly examine your bank statements, bills, and any other relevant documents. This way, you’ll know where your money is going!

Consult a notary or lawyer

If your financial situation is complicated, it may be advisable to consult a notary or lawyer to help you draft a power of attorney.

Cancel it whenever you wish

You can cancel a power of attorney at any time, and for any reason, even before an expiry date, if you have provided one. You might wish to do this if you suspect some abuse or simply because the task indicated in the power of attorney has been completed.

Here are some situations in which a power of attorney is automatically cancelled:

  • The mandatary you have named has died or has been declared incapacitated by a court.
  • You have been declared incapacitated by a court. In this case, your power of attorney becomes invalid. The mandatary must render account to the person named by the court to look after your affairs.
  • You pass away. In this situation, the mandatary must render account to the liquidator (executor) of your estate.  

How to cancel a power of attorney

  • Write on every copy that it has been cancelled. If a notary prepared the power of attorney, ask the notary to mark that the power of attorney is cancelled on the original or any other copies they may have.
  • Contact all financial institutions, and anyone else with whom the mandatary might have been dealing, to inform them the power of attorney has been cancelled.
  • Ask that all copies of the power of attorney be returned to you. If a notary did not prepare the power of attorney, ask that the original be returned to you as well.
  • If there was some abuse, try to discuss it with people, financial institutions, or companies involved to see if you can settle the matter. In some cases, it may be possible to cancel certain transactions.  

Resources

Elder Mistreatment Helpline

1-888-489-2287

https://www.aideabusaines.ca/en/

To report on a situation of abuse:

Commission des droits de la personne et des droits de la jeunesse du Québec (human rights and youth rights commission)

https://www.cdpdj.qc.ca/en

514-873-5146 ou 1-800-361-6477

You can also call the police: 911