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Posted on February 21st 2006 in Legal Articles

No Power of Attorney for Property Now Mean Expense and Delay Later

No Power of Attorney for Property Now Mean Expense and Delay Later

No one likes to think about the possibility that some day they may not be able to manage their own property. Unfortunately, life has a way of throwing you a curve ball when you least expect it. So it only makes sense to take certain precautionary steps such as preparing a power of attorney for property.

What is a Power of Attorney for Property?
A power of attorney for property is a relatively straightforward but powerful document, which helps to guarantee that appropriate financial decisions are made if you are unable to decide for yourself. A power of attorney gives the person you appoint the automatic legal authority to deal with your money and property.

In the event of your incapacity, a continuing power of attorney for property allows for a seamless transfer between the donor (the person making the power of attorney) and the attorney (the person being appointed) such that business and financial commitments will not be needlessly disrupted.

While a power of attorney is neither complicated nor time consuming to prepare, the consequences of not having one can be expensive and disruptive. Contrary to what many believe, neither your spouse nor other family members have an automatic legal right to handle your affairs should you be incapable. For instance:

• Your spouse will not be able to sell or remortgage your house.
• Your spouse will not be allowed to deal with the Canada Revenue Agency on your behalf.
• If you are single, your parents and siblings will not be able to deal with your creditors or bank.
• A business, particularly a sole proprietorship, may come to a grinding halt since no one is automatically entitled to deal with it.

No Power of Attorney for Property
Where there is no power of attorney, a person’s affairs may be administered by the Public Guardian and Trustee, an agent of the government. This means that the Pubic Guardian and Trustee would be allowed to take possession of your bank accounts, investments, and all other assets – without consulting your family. And while the Public Guardian and Trustee has a legal obligation to manage your assets fairly, the decisions may be quite different from those you would make. In addition, your family’s views and needs might not be adequately considered.

While a family member can apply to replace the Public Guardian and Trustee, he or she would have to prepare a management plan for the incapable person’s property and could have to post security. If the Public Guardian and Trustee refuses to issue the necessary certificate, the applicant would be forced to apply to the court, meaning further expense and delay.

The time and cost of not having a power of attorney will far exceed the time and money it will take to seek the necessary legal help to prepare this document today.

The importance of planning in advance for your potential incapacity cannot be overstated. Stan Landau and Howard Steinberg can advise you and draft the necessary documents.1