What’s the difference between next of kin and power of attorney?
In this article, we’ll explore incapacity planning, how next of kin and power of attorney are legally defined, how they impact legal decision-making for healthcare and financials, and what some common misconceptions about them are.
Key terms
Next of kin refers to a person’s closest living relatives, which includes those with a legal relationship such as a spouse or adopted child, and blood relations such as children, parents, and siblings. The order of next of kin depends on legislation defined by each province. In estate planning, next of kin is often synonymous with heirs.
Capacity refers to your ability to make your own decisions. Losing capacity can occur from an accident, an illness, a neurological condition such as dementia, or another cause.
Power of attorney (POA) is a legal document that gives someone you trust the authority to make decisions on your behalf about your property, finances, personal life, and medical care. The person who takes on this role may be named your attorney, representative, or agent.
POAs can be divided into two types:
- A power of attorney for personal care (also known as a Health Care Directive, Advance Healthcare Directive, or Enduring Power of Attorney), is often only made effective in the event of an emergency or if you become incapacitated
- A power of attorney for property, which can be made effective immediately upon signing
Roles and responsibilities
Here’s a breakdown of how next of kin and attorneys differ, including under what circumstances they can act, what they are allowed to do, and which role takes precedence depending on the situation.
Healthcare decisions
When it comes to healthcare directives and medical decisions, the person appointed as the attorney in a Power of Attorney for Personal Care becomes the decision maker. But their power to make decisions only becomes available in the event you are unable to communicate yourself. They cannot make decisions for you if you have the capacity to make them yourself.
With Willful, you can easily document your medical care wishes for your attorney. These include considerations such as medical treatments, procedures, and end-of-life care.
Can my power of attorney go against my wishes?
No, a power of attorney document is legally binding and only grants the powers laid out within it. Your designated POA does not have the authority to go against the wishes outlined in the document or wishes you’ve outlined verbally.
Is a POA for personal care different from a living will?
A personal directive or living will refers only to who will make your care decisions, what your care should look like, and how decisions should be made. If your POA for personal care includes care instructions, then the two documents act the same when it comes to making decisions about medical care.
Who makes medical decisions if there is no power of attorney in Canada?
If you find yourself in a situation where you need someone to make health decisions for you, and there is no POA for personal care or legal guardianship, then your local regulatory board (ex. The Consent and Capacity Board in Ontario) will determine who should be the decision maker.
Usually, they will look to next of kin first, and if there is someone eligible, that person may be involved as the substitute decision-maker in medical decisions, particularly in emergency situations where immediate decisions are needed.
Who can be a substitute decision-maker?
Criteria to be considered a substitute decision maker for someone is as follows:
- Capable of making the decision, meaning the person understands the information that is relevant to the decision as well as any reasonably foreseeable consequences of the decision
- Of the age of majority or older (an exception being Ontario, where POAs or substitute decision-makers can be 16)
- Available at the time needed to make the decision
- Not prohibited by court order or separation agreement from having access to the incapable person, or giving or refusing consent on his or her behalf
Financial authority
Next of kin has no legal power over your assets, which includes any tangible or intangible items you own, such as real estate, vehicles, cash, bank accounts, investments, and patents. The only exception to this is if you share ownership.
The person appointed as attorney in a POA for personal care also has no legal ability to access your assets.
The person appointed as attorney in a POA for property does. In a power of attorney for property document, you name someone as your attorney and give them access to your financials and property, specifying if it is effective immediately after signing or in the event that you are incapacitated. They would be able to pay your bills, manage investments, or even collect money owed to you.
If this seems daunting to you, you can also limit their power by specifying what they can and cannot do. For example, your attorney can only pay your bills and invest in certain assets. Or your attorney can only sell a specific property of real estate.
Appointing and changing roles
Your next of kin can also be appointed as your attorney. It’s common for people to appoint their spouse or unmarried partner, family member, or close friend as their attorney. Keep in mind that an appointment isn’t mandatory. The person you select can decline the role, which is why discussing the role with the person you’d like to choose is very important.
Who you can choose to be your POA varies for each province, though generally, the criteria are:
- Someone of the age of majority in your province
- Someone who is aware of your interests, affairs, and wishes
- Someone who is reliable and trustworthy
- Someone with the time to oversee the responsibilities of the role
- Someone who can be accessible on short notice
You can change your POA whenever you like too. Simply redo the documents with the name of the newly appointed person, print them out, and sign them based on the legal requirements of your province.
To override an existing POA, you have two options. You can make new POA documents and sign and witness them, which will revoke previous documents, or you can prepare a Revocation Document, sign and witness it, and deliver it to your attorney and any parties who have the original POA document.
Common misconceptions
Next of kin have important decision-making powers and responsibilities
Being next of kin does not mean you immediately become the decision-maker for a family member or spouse who is incapacitated. Next of kin can only become substitute decision-makers if they are legally appointed as the attorney by the person whose care is in question or by a court or capacity board.
Power of attorney documents are only useful for the elderly
Life is unpredictable, and accidents or illnesses can happen at any time. Having power of attorney documents in place gives you peace of mind knowing your finances, health and personal decisions are protected, regardless of age.
Both types of power of attorney are only for loss of capacity
You can make specific limitations to power of attorney for property that become effective immediately or in other circumstances, such as incapacitation. You can specify that your attorney only has power for certain situations, such as if you’re travelling abroad and need someone to manage your finances at home.
Power of attorney gives you power over both financial and medical decisions
While the same person can be both an attorney for personal care and an attorney for property, they must be actively appointed as both. Someone who is appointed POA for personal care does not have access to the financials of the testator, nor does a POA for property have the ability to make healthcare decisions.
Prepare for the future with Willful
Just because we don’t know exactly what the future may hold doesn’t mean we can’t prepare for it. By creating your estate plan today, complete with your will and power of attorney documents, you’ll make sure that your estate, healthcare, dependents, and end-of-life decisions are well looked after. By doing so, you also give both yourself and your loved ones lasting peace of mind.
