Product Description

- Plan your future — your way - Assign authority to act on your behalf - Cover all aspects of your life — not just medical - Appoint someone you trust to manage your affairs

Product Details

• Amazon Sales Rank: #35428 in Books
• Published on: 2003-04-01
• Released on: 2003-04-01
• Binding: Paperback
• 80 pages

From the Back Cover
You may be organized and have all your financial papers filed and ready to access if something should suddenly happen to you. You may update your will regularly and rest assured that your family is well taken care of.

About the Author
M. Stephen Georgas received his LLB from York University in 1978 and was called to the Ontario Bar in 1980. He specializes in corporate and commercial law and is also a Registered Professional Engineer of the Province of Ontario. Mr Georgas is the author of Incorporation and Business Guide for Ontario, another title available from Self-Counsel Press.

Excerpted from Power Of Attorney Kit W/Cd-Rom by M. Stephen Self-Counsel Press. Copyright © 2003. Reprinted by permission. All rights reserved.
1. WHAT IS A POWER OF ATTORNEY?

Simply stated, a power of attorney is a written document by which you grant to someone the authority to act on your behalf on various matters, including, in some provinces, matters dealing with your health. A power of attorney can be a very useful device in the management of your affairs during your lifetime, particularly as you grow older. For example, you might grant a power of attorney to your child to enable him or her to manage your affairs after a certain age. A power of attorney is different from a will, which provides for the orderly distribution of your estate after your death; in most situations, a power of attorney terminates on your death.

The person who gives the authority is called the principal or the donor; the person to whom the authority is given is called the agent, donee, or attorney. You can appoint your attorney to carry out certain acts for you such as —

(a) negotiating cheques, bills of exchange, promissory notes, etc.; (b) purchasing, selling, or dealing with stocks and bonds; (c) collecting rents, profits, commissions, etc.; (d) managing, buying, and selling real estate; (e) conducting business operations; and (f) in Ontario, Manitoba, and British Columbia, deciding issues about your personal care.

Note: The donor of a power of attorney confers on another person significant rights and powers as specified in the power of attorney and should, therefore, always obtain independent legal advice separate and apart from the attorney named in the power of attorney. In the absence of such independent legal advice, the power of attorney may be voidable.

2. AGENCY

Because the law of agency applies to powers of attorney, it is helpful to understand some of the concepts of that law.

The relationship between an agent and a principal is called an agency. An agency is created when one person, the agent, is given the authority to act on behalf of another person, the principal.

An example of an agent that many people use is a real estate agent. Generally, a real estate agent is appointed to act for a principal on certain transactions dealing with real estate. The authority is given to the real estate agent in the listing agreement and in the agreement of purchase and sale. In those documents, the agent’s terms of appointment, duties, and remuneration are set out.

An agent is not an employee or an independent contractor. Legally, an employee works under the direct control and supervision of an employer and is bound to perform within the employer’s guidelines and directives; an independent contractor is free to perform work as he or she sees fit and is bound only to produce the result defined by a specific contract. On the other hand, although he or she is bound to perform duties according to the principal’s instructions, an agent is not normally under direct supervision like an employee, but neither is he or she free to act like an independent contractor. An agent must be instructed and guided by the agency contract.

3. HOW IS AN AGENCY CREATED?

A contract of agency or power of attorney is created when two people formalize an agreement between them. Generally, this is done by signing and sealing a document in front of a witness and having the witness swear an affidavit that he or she saw the document signed. (To “seal” a document simply means to place a small red sticker or wafer next to the signatures of the people making the contract. This practice is a holdover from the days when wax impressions were used to record a person’s seal of promise. Red wafers, or seals, are available in most stationery stores.) A power of attorney is created in the document when the principal or donor gives authority to the agent or donee to act in his or her name.

4. WHO CAN BE A PRINCIPAL AND AN AGENT?

Generally, whatever you have the power to do yourself, you can do by means of an agent. Similarly, whatever you do not have the power to do yourself, cannot be done through an agent.

If you can legally enter into a contract, you may grant a power of attorney. In most cases, only the following cannot grant a power of attorney or be a principal:

(a) An enemy alien (i.e., a person whose country is at war with Canada or has hostile relations with Canada) (b) An infant (i.e., any individual under the age of majority, subject to certain exceptions — e.g., a married person, even if an infant, can grant power of attorney. Note that the age of majority varies from province to province.) (c) Persons of unsound mind (d) Corporations (Note: A corporation’s right to appoint a power of attorney can be limited by its articles of incorporation. If the articles do not permit appointment of an attorney and the appropriate legislation does not have ancillary powers to do so, the corporation cannot appoint an attorney.)

There are fewer limits on who can act as an agent or donee. Anyone other than a mental incompetent can be an agent. Therefore, an infant child could act as an agent even though he or she could not be a principal.

From a practical standpoint, I suggest that you select someone you can trust and whom you consider would be responsible in carrying out his or her duties. It is not necessary for the donee or attorney to be a lawyer.