Most people don’t expect to lose the ability to manage their own money, health care or daily needs. Still, an illness, accident or change in cognitive health can make important decisions difficult. A power of attorney in Ontario lets you choose someone you trust to make certain decisions on your behalf.
Planning ahead doesn’t mean giving up control. You generally continue making your own decisions while you are capable. The document creates a clear plan for when help is needed and identifies who has authority to act.
What Is a Power of Attorney?
A power of attorney is a legal document that authorizes another person to make specified decisions for you. The person who creates it is commonly called the grantor. The person appointed to act is the attorney.
Despite the title, your attorney doesn’t need to be a lawyer. You may choose a spouse, adult child, relative, trusted friend or another eligible person. The right choice is someone dependable who can put your interests ahead of their own.
In Ontario, you must generally be at least 18 and mentally capable to make a power of attorney for property. You must generally be at least 16 and mentally capable to make one for personal care. The capacity requirements differ for each document.
What Are the Two Types of Power of Attorney in Ontario?
Ontario uses separate documents for financial matters and personal care decisions.
Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property covers financial matters. Depending on the wording, your attorney may be able to pay bills, manage bank accounts, handle investments, maintain or sell real estate and complete other transactions.
The word “continuing” means the authority can remain in place if you later become mentally incapable of managing your property. An attorney may generally do anything involving property that you could do if capable, except make a will for you.
This document may take effect as soon as it is signed unless it says otherwise. Some people include a condition stating that it can only be used after incapacity has been confirmed. Clear wording matters so the attorney and financial institutions understand when the authority begins.
Power of Attorney for Personal Care
A Power of Attorney for Personal Care addresses decisions involving health care, housing, nutrition, clothing, hygiene and safety. It’s used when you are incapable of making the particular personal care decision yourself.
Capacity may depend on the decision. A person could make some daily choices while needing help understanding a complex health-care matter. Appointing an attorney doesn’t automatically remove your ability to decide while capable.
The document may also include wishes or instructions. These can guide your attorney when speaking with health-care providers or arranging living support.
How Does a Power of Attorney Work in Ontario?
The process starts with choosing the right person. Family position alone should not make the decision. Consider whether the person is trustworthy, organized, available and able to handle difficult conversations.
You may appoint one person, multiple people or a substitute who can act if your first choice can’t. If more than one attorney is named, the document should explain whether they must act together or may act separately. Without wording that says otherwise, multiple attorneys are generally required to act jointly.
You must also decide how much authority to provide. The document can be broad or limited to specific assets, transactions or circumstances. It may include directions about recordkeeping, consulting family members or when the authority begins.
Ontario powers of attorney must be signed in the presence of two eligible witnesses, and both witnesses must sign. Certain people can’t act as witnesses, including the appointed attorney and some close family members. Ontario also permits remote witnessing when the applicable legal requirements are followed, including the involvement of at least one Law Society licensee.
Keep the original secure but accessible and tell your attorney where it is stored. A document may not help during an emergency if no one can find it.
Why Is a Power of Attorney Important?
The main benefit is choice. You decide who may act, what they may do and which instructions should guide them.
Without an attorney for property, your spouse or adult children cannot automatically take over your financial affairs. A family member may need to pursue guardianship, and the Office of the Public Guardian and Trustee may become involved in some circumstances.
Personal care decisions work differently. Ontario’s Health Care Consent Act provides a ranked list of substitute decision-makers who may make certain treatment decisions when a person is incapable. However, that person may not be who you would have selected, and their authority may not cover every personal care issue.
Clear documents can reduce uncertainty. They show who has permission to act during an already stressful time.
When Should You Review Your Power of Attorney?
Review your documents after a major change in your life. This may include:
- Marriage, separation or divorce
- The death, illness or incapacity of your attorney
- A significant change in your finances
- The purchase or sale of a business
- A move to another province
- A breakdown in an important relationship
An older document may still be legally valid but no longer practical. Your chosen attorney may be unavailable, your relationships may have changed or the instructions may no longer reflect your wishes.
Reviewing your documents periodically also gives you an opportunity to confirm that your attorney is still willing to act and knows where the original documents are stored.
Plan Before Help Is Needed
The best time to prepare these documents is while you can carefully consider your options, speak with the people you trust and provide clear instructions. Waiting until an illness or emergency develops may limit the choices available to you and your family.
Lamprey Law can explain your options, help you choose the right documents and prepare powers of attorney that reflect your circumstances and wishes. Contact our Barrie office to discuss creating new documents or reviewing an existing estate plan.
Frequently Asked Questions About Powers of Attorney in Ontario
Does My Spouse Automatically Have Power of Attorney in Ontario?
No. A spouse does not automatically have authority to manage all of your property or finances if you become incapable. A spouse may be able to make certain health-care decisions under Ontario’s substitute decision-making rules, but that is not the same as being appointed under a power of attorney.
Does a Power of Attorney Need to Be Notarized in Ontario?
Notarization is not generally required. The document must be signed correctly in front of two eligible witnesses. Having a lawyer prepare or review it can help ensure the document reflects your intentions and meets Ontario’s signing requirements.
Can I Appoint More Than One Attorney?
Yes. You can require the attorneys to act together or allow them to act separately. The document should clearly explain how decisions are made, particularly if the attorneys have different responsibilities or live in different locations.
Can My Attorney Change My Will?
No. An attorney for property cannot make a will on your behalf. Their authority may be broad, but it does not include changing how your estate will be distributed after your death.