Powers of Attorney
A General Power of Attorney for Property is a legal document empowering the attorney to manage finances and property only while the grantor is mentally capable. If they become mentally incapable of managing their property, the General Power of Attorney for Property ends, and the attorney can no longer act.
A Continuing (or ‘Enduring’) Power of Attorney for Property continues even when the grantor becomes mentally incapable of managing property. If it only takes effect at the point of incapacity (or at another specified date), it is referred to as a ‘Springing’ power of attorney.
| Capable | Incapable | |
|---|---|---|
| General | Active on signing | Ends at point of incapacity |
| Limited | Specific Time(s) or Purpose(s) | |
| Springing | NOT active on signing | BEGINS at point of incapacity |
| Continuing | Active on signing | Continues beyond point of incapacity |
Mental Capacity
It’s important to clarify how mental capacity is to be determined. If it’s overly onerous, or insufficiently clear, it may unnecessarily delay the attorney’s ability to act. In some cases, the grantor may leave the determination to the discretion of the attorney, while others may require a letter from their physician or physicians, if multiple opinions are deemed necessary (though this may unnecessarily delay the attorney from exercising their authority).
Even if the grantor is incapable of managing their property, they may have the mental capacity to give a continuing power of attorney. For example, they may not remember how much their monthly pension cheque is but may know that they get one and that they want their son or daughter to handle it.
Blog Posts
- Estate Settlement Challenges – When Creditors Pursue the Estate
- Managing digital assets as an Executor
- Estate Planning Facts You Cannot Ignore
- Dying Intestate? What’s that?
- 4 Reasons Why Executors Should Work with a Professional
- The Hidden Challenges of Estate Home Sales
- What Impact Did the Pandemic Have on Estate Planning
- Certified Executor Advisor (CEA) Designation Program Now Offered Throughout the USA
- Acting as an Executor
- Enhance Your Career with the Certified Executor Advisor (CEA) designation
- How to choose the right Executor
- Navigating the Complexities of Estate Planning: How Certified Executor Advisors Can Help
- Certified Executor Advisors: A Critical Resource for Estate Planning, Management, and Settlement