Differences between Power of Attorney, Enduring Power of Attorney, Advance Health Directive and Will
What’s the Difference?
Timeline:
18 years old Lose Capacity ________Death
- Power of Attorney;
- Enduring Power of Attorney;
- Advance Health Directive; and
- Will
1. Power of Attorney is generally used when a person (the ‘Principal’) is going to be unavailable for a particular time (overseas for a trip, or schooling, etc) or during an event (buying or selling property, business, etc) and they wish to nominate a trusted person (the ‘Attorney’) to act on their behalf. This document must be registered with the Titles Office if the Attorney will be handling the sale or purchase of real estate on behalf of the Principal. A Power of Attorney ceases to be effective upon the loss of capacity or death of the Principal.
2. An Enduring Power of Attorney is used when the Principal wishes someone to be able to handle their personal and/or financial matters on their behalf and to continue to be able to handle those matters even if/when the Principal loses capacity. This document, like the Power of Attorney in 1.above can be entered into at anytime, as long as the person has capacity. However, unlike 1. above, the Enduring Power of Attorney continues after loss of capacity and cannot be revoked by the Principal if they no longer have capacity. This document can be registered if the Attorney will be selling or buying real estate on behalf of the Principal.
3. An Advance Health Directive is generally only prepared when a person is facing a life threatening illness. This document is fairly confronting for most people, and a Doctor must sign off on the patient’s capacity to understand and appreciate the document as prepared.
4. A Will is a document that sets out the wishes of the testator regarding their property when they have passed away. A Will functions after the death of the testator, so a will should not nominate how funds are to be treated prior to the death of the testator. A person cannot give away property they do not own, so wills should be updated to reflect the current assets and wishes of the testator.
All very interesting, but why the timeline?
It is an important reminder that while some people never lose capacity, their minds being sharp to the end, some people lose capacity a long time before they pass away. It is important to remember that you cannot sign any of the above documents unless you currently have capacity.
It is crucial, not just for yourself, but for your loved ones to have these documents to make your wishes clear and to provide those who you trust with the power to assist you when needed. The documents above are fairly flexible and can be drafted (in the case of 2. above especially) to only come into place after you have (as my boss likes to say) headed off with the pixies.
Hopefully you’ll never need 1-3, but we all need a will sooner or later!
So, call and make an appointment to review these important documents with a McLaughlins Lawyer.
We’re here to help.
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