April 17, 2020 | COVID-19

Should you establish a power of attorney, a protection mandate or a will during the Covid-19 pandemic?

The answer is that it is not required by law, but it is certainly a good idea! This is a gift to your family and loved ones. It removes the obligation, stress and responsibility of your loved ones to make difficult decisions on your behalf or to guess your wishes. It will also avoid family feuds. Your family will thank you, for not having to make challenging decisions during what you can imagine will already be a stressful time for them, dealing with your illness, incapacity and/or death.

While you may already have a power of attorney appointed, a will or a protection mandate in place prior to the COVID-19 pandemic, many do not. Even if you already have any of the above in place, there might be necessary amendments to be made based on changes that have occurred in your life since the writings were finalized. These discussions are not easy to have; however it is critical to address your wishes with your loved ones and ensure you have the necessary paperwork done. 

You might be asking yourself the following: what is a will, a protection mandate, and a power of attorneyand why would I need either or them, or all of them?  The answer is they are all important writings, however they are not interchangeable. Each of them is useful during a different stage and circumstances in your life. 

(1)  A will is used in order to determine who you would like to receive your property and how it will be managed and distributed after your death. For example, you would like your three children to share equally in the value of your patrimony when you die, or that you would not like your patrimony to be equally divided and in that case your will would stipulate your specific wishes. 

(2)  A protection mandate is set up and used in order to make sure you are taken care of and that your property is managed appropriately while you are still alive but incapacitated. A protection mandate is a document where you name one or several people to make decisions with respect to your health and wellbeing and to manage your property if you become incapable of doing so yourself and the person named in a protection mandate is called a mandatary. For example, you could state in your protection mandate that you name your spouse as your mandatary and that you would like your spouse to respect your wish that you refuse to be reliant on a ventilator should you be unable to breathe on your own. 

(3)  A power of attorney (also called a mandate or ordinary mandate) allows you to name one or more people to act in your name while you are still capable of doing so yourself. For example, you own property in Montreal, however you are living in Australia and would like your sister to be able to collect rent for you and make deposits into your bank account. Having a power of attorney or a protection mandate (previously known as a mandate in case of incapacity) is especially important in present times, particularly since the vast majority of COVID-19 patients who are hospitalized are not allowed visitors, and are often not in the position to make enlightened decisions and/or express their wishes. 

Dr. Mitch Shulman, attending physician at the MUHC ER spoke on CTV News this week and pleaded with the population to do what we can to ensure that everyone has the necessary conversations with our spouses and/or other family members in order to determine what our wishes are if we become incapacitated and we are not able to voice our wishes at that time. He stated that it is important to have these discussions now, while we still can. Understanding a patient’s goals of care helps reduce unnecessary suffering as it will allow doctors to respect the patient’s wishes.

Notaries in Quebec have seen a rise in clients amending their pre-existing wills and/or looking to establish a will for the first time. There has also been a spike in the demand for protection mandates and powers of attorney as we are suddenly faced with a daily rising death toll along with the inevitable possibility that we may fall ill and that the severe consequences that brings. 

Beginning on April 1, 2020, the Quebec Ministry of Justice has given the province’s notaries the green light to sign notarized documents remotely for the duration of the Quebec public emergency decree. This is an exceptional measure and is unprecedented.  

Read More: Child support obligations during Covid-19

We at Spunt & Carin strongly advise that you initiate these conversations with your loved ones now without further delay, both to inform them of your wishes and to determine theirs. Following which you should contact a notary in order to prepare the necessary writings in order to ensure that your wishes are reflected in the necessary official writings. This will reduce the chances of your wishes being contested by different family members or friends and it will ensure that your wishes are respected. Your family will be grateful that you have removed that pressure and stress from them and as mentioned earlier, it will avoid arguments between family members. 

If you have any specific questions about either a will, a protection mandate or a power of attorney, please do not hesitate to contact us, and we will be happy to answer any of your questions.