A Power of Attorney (“POA”) allows you to appoint a person(s) to assist with your property and financial affairs, while you are healthy (for example if you are away an unable to manage your affairs), or upon your incapacity. A Personal Directive (“PD”) allows you to nominate an agent(s) to make personal and health care decisions if you lack capacity. The POA is a financial responsibility; the PD is medical.
How is a POA activated?
5(1) An enduring power of attorney may provide that it comes into
effect at a specified future time or on the occurrence of a specified
contingency, including, but not limited to, the mental incapacity or
infirmity of the donor.
(2) An enduring power of attorney referred to in subsection (1)
may name one or more persons on whose written declaration the
specified contingency is conclusively deemed to have occurred for
the purpose of bringing the enduring power of attorney into effect.
You may appoint an Attorney to assist you immediately, or at a specific future time. Your Attorney will require the original document to manage your affairs. With an Enduring POA, your Attorney can continue to help you after you are incapacitated. More often, a POA is drafted to say it will only come into effect upon your incapacity (physically or mentally infirm). Normally the POA will say that the question of your incapacity is to be determined by the “written declaration” or one or two medical practitioners. “Written declaration” is not defined in the Act, but it is my experience that a simple letter will suffice.
How is a PD activated?
Under the Personal Directives Act, a capacity assessment is used to evaluate whether
a maker is capable of making personal decisions. The Act outlines who is authorized
to complete capacity assessments and how capacity assessments must be done.
If the maker does not name a specific person to assess his/her capacity, the Act states that two service providers, one of whom must be a physician or psychologist, can complete a capacity assessment.
Declaration of Incapacity:
Please contact Navigator Law LLP if you have any questions about POA or PD.