Legal Brief for February, 2011

Definitions of Words Related to Enduring Powers of Attorney

There are many words and phrases that lawyers will mention to their clients when discussing Enduring Powers of Attorney that they are preparing.  It can become difficult to keep track of what all the terms mean, let alone sort out the relevance to your particular document.  Here is a sampling of common words that you will encounter when getting your Enduring Power of Attorney prepared.

Attorney   - this is sometimes confused with the usage of the word as being that of a lawyer, such as in the U.S.  where lawyers are most often referred to as attorneys.  The proper meaning in the case of someone given "power of attorney" is that of an agent appointed by another to perform certain acts in their place.

Donor   - the person making or granting the power of attorney.

Enduring   - this is what distinguishes an "enduring power of attorney" from a regular power of attorney.  A regular power of attorney becomes automatically null and void if the maker of it becomes incapacitated.  An "enduring power of attorney" does not.  It continues to have full legal force and effect even if the maker is incapacitated.  In other words, it's legal status "endures" or survives during the incapacity.

Beneficiary   - the person(s) that you name in your Will to inherit your assets.

Incapacity   - the state that exists when the donor is infirm or mentally incapable of making reasonable judgments in respect of matters relating to all or part of their property and personal affairs.  When a person becomes incapacitated, this triggers the enduring power of attorney document to take legal effect (upon the certification as to incapacity by a medical doctor).

Powers   - the nature of the authority that the donor grants to his or her attorney.  You can grant basically unlimited powers to your attorney, which would allow the attorney to do anything in respect of your property and finances as you would be able to do yourself.  The powers can also be very specific and limited, such as for example giving the attorney the power only to sell or otherwise deal with your house, or with doing your banking.

Don't hesitate to speak up and ask your lawyer to explain any terms or concepts that you may not understand as you are working through the process of getting your Enduring Power of Attorney prepared.  Your lawyer will be pleased to spend a few extra minutes with you to ensure that you thoroughly understand the concepts involved in this important document in your life.