Legal 271 - Powers of Attorney and Personal Directives Notes

Powers of Attorney

  • Definition: A legal document allowing a person (the Attorney) to act on behalf of another (the Donor) in financial and property matters.
  • Historical Use: Primarily used for business transactions, especially before electronic communications.
  • Application: Documents may be used in various scenarios, like real estate transactions, especially for individuals who spend part of the year in different locations (e.g., snowbirds).
  • Misconception: Attorney does not necessarily mean lawyer; the term is used differently in various countries.

Types of Powers of Attorney

  • Immediate Powers of Attorney: Effective immediately upon signing.
  • Springing Powers of Attorney: Effective only upon a specified event, typically the loss of capacity.
  • Normal vs. Enduring:
    • Normal: Ceases upon loss of capacity.
    • Enduring: Remains effective even after the Donor loses capacity.
  • Commonly Used: Springing Enduring Power of Attorney is most popular for ensuring continuity of decisions after capacity loss.

Duties of an Attorney

  • Responsibilities: Managing day-to-day financial matters including:
    • Paying bills
    • Filing taxes
    • Making investments to protect the estate’s value
    • Buying or selling property as needed
  • Fiduciary Duty: Must act in the Donor's best interest, avoiding conflicts of interest, and providing transparent accounting of actions and decisions.

Personal Directives

  • Definition: A document appointing an agent to make personal and health-related decisions on behalf of the maker if they lose capacity.
  • Terminology: Often referred to as a “living Will” or “Power of Attorney for Medical Decisions.”
  • Nature: All Personal Directives are enduring and stay effective after the maker loses capacity, unlike some Powers of Attorney.

Duties of a Personal Directive Agent

  • Responsibilities: Making decisions regarding:
    • Living situation (e.g., home vs. assisted living)
    • Medical care and informed consent
    • Attendance at medical appointments
    • Choices regarding medications and elective surgeries
    • End-of-life decisions, such as whether to withhold life-sustaining treatments
  • Authority: The authority of the agent is generally comprehensive unless specified limitations are included in the Directive.

Medical Assistance in Dying (MAID)

  • Context: Landmark case (Carter v. Canada) ruled that failing to allow assisted dying for grievously ill patients violates charter rights.
  • Eligibility for MAID:
    • Must have clear consent.
    • Must have a grievous and irremediable condition.
    • Must be over 18 years old.
    • Condition must cause intolerable suffering, and result in natural death.
  • Limitations:
    • Current regulations restrict its availability particularly for mental illnesses and individuals who have lost capacity.
    • Patients can plan out their wishes while still competent, a recent amendment to the policy.

Guardianship & Trusteeship

  • Need for Application: When a person lacks a Power of Attorney or Personal Directive and becomes incapacitated, an application for guardianship or trusteeship may be necessary.
  • Process:
    • Requires thorough due diligence, can be burdensome and costly.
    • The Office of the Public Guardian and Trustee can intervene if no application is filed.

Summary of Next Class

  • Review all topics covered in preparation for the upcoming midterm exam. Focus on understanding key concepts related to Powers of Attorney and Personal Directives.