DocumentsNon-Continuing (or Limited) Power of Attorney
Non-Continuing (or Limited) Power of Attorney
A Non-Continuing (or Limited) Power of Attorney is only valid as long as the donor is capable of acting for him or herself. If the donor becomes mentally incompetent (loses capacity), the ordinary Power of Attorney ends.
The Power of Attorney becomes invalid when the donor dies. A Power of Attorney cannot be used to bequeath property upon the death of the donor.
Non-Continuing (or Limited) Power of Attorney
What is a Power of Attorney?
A Power of Attorney (POA) is a legal document that gives someone the authority to manage your affairs on your behalf. The parties in this contract are known as the:
- Donor: The person granting powers
- Attorney: The person(s) receiving powers
An attorney can make decisions regarding your finances, business, property, and more. This authority is crucial if you want someone to legally represent and advocate for your interests in situations where you can’t.
A trustworthy attorney is a valuable life tool whenever you:
- Acquire a health condition that may affect mental capacity
- Work in a high-risk environment
- Need help managing a business
- Leave the country for a while
Frequently Asked Questions
Who can you give powers to in a POA?
Powers can be given to your spouse, a family member, a trusted friend, a professional such as a lawyer or accountant, or any other capable adult. The person you assign powers to has the right to refuse, so you should always discuss your plans with the person you want to give powers to before proceeding.
You can choose to give Power of Attorney to more than one person, and specify that your attorneys must all agree before taking action on your behalf. Alternatively, you can make it so your attorneys can act independently of each other.
You can also identify an alternate attorney who is able to act for you if the original attorney is unable or unwilling to do so.
How does a Power of Attorney work?
With an Ordinary or Enduring POA, an attorney’s powers are active as soon as you sign and execute the document (unless you create a Springing POA that specifies a date for their powers to go into effect). This form outlines the terms and conditions of the attorney’s power. What’s more, every province and territory has laws governing POAs (e.g., guidelines for assessing capacity and legal requirements for an attorney).
Once a person dies, their POA becomes invalid. Control over the deceased’s estate then goes to the executor named in their Last Will and Testament.
Who can be an attorney?
Each province or territory has a Power of Attorney Act (or similar legislation) that regulates who’s eligible to be an attorney. Common provisions in these acts include:
- The attorney can’t be involved in any bankruptcy proceedings when the donor assigns powers to them
- If the donor lives in a care facility or nursing home, the attorney cannot be someone who works in or owns the facility
- The attorney must be of legal age and mentally capable
You’re free to choose who you’d like to act as your attorney, as long as they meet the legal requirements. For instance, you can give powers to your spouse, sibling, parent, or a trusted friend. On the other hand, you may prefer to hire a professional such as a lawyer or accountant.
You can even appoint multiple attorneys if it suits your purposes. In this case, your Power of Attorney will outline how the attorneys can operate. For example, you might require them to agree before taking action on your behalf. Alternatively, you can make it so your attorneys can act independently of each other.
You can also identify an alternate attorney who is able to act for you if the original attorney is unable or unwilling to do so.
What are the duties of a Power of Attorney?
The applicable Power of Attorney Act may specify the duties of an attorney. For example, common requirements include:
- Prioritizing the personal health and care of the donor
- Acting in honesty and good faith
- Acting only under the authority they’re given
- Keeping records of their business
Attorneys are fiduciaries for donors—which means they must always act in the best interests of the donor. What’s more, certain laws might restrict the ways in which an attorney can deal with a donor’s money and property. They might also require an attorney to keep their finances separate from the donor’s and to file reports periodically to the government. As such, it’s important to research which laws apply to you. (Contact a lawyer for any specific questions about your situation.)
In addition to the duties of an attorney required by law, the Power of Attorney form outlines their responsibilities.
Non-Continuing (or Limited) Power of Attorney – This is valid as long as the proper authority deems you to bementally competent. If you become incapacitated while you have an Ordinary POA, the POA will automatically end. Generally, having legal capacity means:
- You understand your situation and the results of your actions
- You are the legal age of majority
As long as you have the capacity to do so, you can revoke an Non-Continuing (or Limited) POA at any time. Or you can set a date for your attorney’s powers to expire within the original document.
Non-Continuing (or Limited) POAs typically grant special powers. For instance, say you only need your attorney for financial issues. So you create a financial power of attorney, perhaps limiting their powers by specifying which bank accounts they can access and how much money they can withdraw. Then, you set the POA to expire once the task is complete or when you’re able to return to your duties.