It is occasionally assumed that a Power of Attorney and a Health Care directive can provide the same type of solution to the maker of the document. Although both documents transfer decision making to another person on behalf of an individual, they serve different purposes.
A power of attorney is a legal document by which a person known as the donor empowers another person known as the attorney to act for the donor in named circumstances. A health care directive (also known as a living will) on the other hand, is a document by which a person called the maker appoints another person called the proxy to make health decisions on the maker’s behalf in case of mental incapacity. Both documents need to be in writing, dated and signed. In addition, a power of attorney must be witnessed. A health care directive only requires a witness if signed by someone else at the direction and in the presence of the maker. The proxy does not even need to sign the document.
A major distinction between both documents is that while the power of attorney empowers the attorney to make financial, legal and property decisions on behalf of the donor, the health care directive empowers the proxy to make decisions on the maker’s medical treatment. An attorney cannot make such personal decisions for a donor. In Manitoba, powers of attorney are governed by The Powers of Attorney Act while health care directives are governed by The Health Care Directives Act. Attorneys have legal obligations to donors and proxies have limitations on the types of consents they can give.
One specific type of a power of attorney is the enduring power of attorney. It provides that the attorney’s power is to continue even if the donor becomes mentally incompetent. While the enduring power of attorney continues despite the donor’s medical incapacity, the health care directive only kicks in on the maker’s mental incapacity and remains effective for the duration of the incapacity. Any person who is 16 years old or more is presumed to have the mental capacity to make health care directives, however, a proxy must be mentally competent and be at least 18 years old to make a decision. Only an adult can be a donor of a power of attorney.
A lawyer can help you draft both documents as part of your estate plan. While a lawyer can draft a Health Care Directive for you, the Manitoba government has provided a free form that serves the same purpose should you choose to use it. An enduring power of attorney on the other hand has more complex legislation and it is advisable to consult a lawyer when preparing one.
