Abraham Harold Maslow ( April 1, 1908 – June 8, 1970) was a psychologist best known for creating Maslow’s “Hierarchy of Needs” theory on fulfilling human needs in priority, culminating in self-actualization. But, he is also known for the “Law of the Instrument” or the over-reliance on the familiar. He is quoted as saying, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” (The Psychology of Science 1966).
When thinking of a Power of Attorney, the temptation for an estate lawyer may be to first think of the Substitute Decisions Act. However, there are times when the Powers of Attorney Act might be more appropriate for part of an estate plan or administration. For example, dealing with a beneficiary resident in a foreign jurisdiction can be made much more manageable with a Power of Attorney. This type of Power of Attorney does not, however, qualify as a Continuing Power of Attorney.
Another consideration is the differences in the form and wording of the Power of Attorney and the formalities of execution. As noted on page 8 of Kimberly Whaley’s “Powers of Attorney” (2016) in a chapter by Andrea McEwan:
“The Powers of Attorney Act does not impose any formal requirements for the power of attorney document. This is in contrast to the Substitute Decisions Act which is formalistic, with a prescribed form, and validity and execution requirements.”
The Continuing Power of Attorney has strict requirements for two independent witness signatures, whereas the Power of Attorney Act does not state any witness requirements or formalities of signing. Consideration should therefore be given to those occasions when you could rely on the Powers of Attorney Act instead of the Substitute Decisions Act.
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