Here's something I see all the time in my practice. A couple comes in to do their wills. We have a good conversation about who gets what, who the estate trustee should be, what happens if one of them passes before the other. Important stuff. Then I bring up powers of attorney, and I can see it on their faces: they had not thought about it.
I understand that. Wills get all the attention. But here's the thing: your will only matters after you're gone. A power of attorney matters while you're still alive - at precisely the moment when you're most vulnerable. If you're in a car accident, if you have a stroke, if dementia begins to take hold, your family needs the legal authority to step in and help you. Without the right documents, they can't do that without going to court, which adds unnecessary stress at an already extremely difficult time.
So let me walk you through both types. It is simpler than most people expect.
The Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property gives someone you trust (your "attorney," though they don't have to be a lawyer) the authority to handle your financial affairs. We're talking about paying your bills, managing your bank accounts, handling your investments, dealing with your property, filing your taxes. The everyday financial business of life. They can do anything you can do except make your will.
The word "continuing" is the key. It means the document stays in effect even after you lose mental capacity. Without that word, a regular power of attorney would stop working at the very moment you need it most.
You have options for how it works. Some clients want it to take effect right away, which is practical if you travel a lot or just want someone who can handle transactions on your behalf. Others prefer to restrict it so it only kicks in if they actually become incapable. Either way, your attorney has a legal duty to act in your best interests and keep records of everything they do.
Without this document, if something happens to you, your family will need to apply to the court for guardianship of your property. That takes time. It costs money. And the court, not you, decides who ends up managing your affairs.
The Power of Attorney for Personal Care
A Power of Attorney for Personal Care is different. This one gives your chosen person the authority to make decisions about your health care, where you live, your nutrition, your safety, your personal needs. It only takes effect when you are actually incapable of making those decisions yourself.
This is the document where you get to say what matters to you. If you have strong feelings about life support, resuscitation, or palliative care, this is where you put them on the record. Your attorney is legally obligated to follow your known wishes. And if you have not expressed a specific wish about something, they must act in your best interest.
I cannot tell you how many families I have worked with who were grateful this document existed when they needed it. And I have also seen what happens when it does not exist. The Health Care Consent Act provides a default hierarchy: spouse first, then children, then parents, and so on. But that hierarchy doesn't always match who you would actually trust with those decisions. And it doesn't cover things like choosing a care facility or deciding where you will live.
Choosing the Right Person
This is the part that clients spend the most time thinking about, and rightly so. Your attorney will have real authority over your life. It is not a ceremonial role.
For the property side, you want someone who is financially responsible and organised. They do not need to be an accountant, but they need to be the kind of person who keeps track of things and doesn't cut corners.
For personal care, you want someone who knows you well, who understands your deep personal values, and who will be able to make difficult decisions under pressure. That is not always the same person as your property attorney, and that is fine. You can appoint different people for each.
You can also appoint more than one attorney to act together, which provides a built-in check. But be aware that joint attorneys must agree on every decision, which can become a problem if they don't get along or if one is hard to reach.
The most important thing is you appoint someone you totally trust. Choose someone whose character you're confident in, because the whole system depends on it.
Questions I Hear in Almost Every Consultation
"Can my attorney change my will?"
No. A power of attorney doesn't give anyone the authority to make or change your will. Only you can do that, and only while you have capacity.
"What if I change my mind about who I have chosen?"
You can revoke a power of attorney at any time, as long as you are mentally capable. I recommend reviewing yours whenever your life circumstances change. Think of a new marriage, a divorce, a falling out, or simply the feeling that someone else would be a better fit. Life changes, and your documents should change with it.
"What if I become incapable and I have not done any of this?"
For finances, someone in your family will need to go to court to be appointed as your guardian. It's a formal proceeding, it's expensive, and it puts the decision in the hands of a judge rather than you. For health care, the default rules apply, which may or may not produce the result you would have wanted. Neither outcome is ideal, and both are avoidable.
The Best Time to Do This
I tell every client the same thing: the best time to set up your powers of attorney is now. Not when you retire. Not when you get a diagnosis. Now. I have seen young, healthy people end up in situations where these documents were urgently needed. You simply cannot predict it.
At Bussey Ainsworth, we prepare powers of attorney alongside your will as part of a complete estate planning package. If you already have a will but have never done your powers of attorney, or if it has been a while since you looked at them, let us fix that. You can download our free Will & POA Worksheet to start gathering your information, or just give us a call and we can talk it through.
For more detailed answers, visit our Powers of Attorney practice page or our Wills & Estate Planning FAQ.
Give me a call at (705) 749-0628 or book a consultation. I look forward to hearing from you.
Barry W. Bussey is the principal lawyer at Bussey Ainsworth in Peterborough, Ontario. He has been helping families with estate planning for over 33 years.
This article is for general information only and does not constitute legal advice. Every situation is unique. Please consult with a lawyer before making estate planning decisions.
