Power of Attorney FAQs

Tannahill Lockhart & Clark Law LLP

What is a Power of Attorney?

A Power of Attorney is a legal document that gives someone else the right to make decisions on your behalf.

Are there different kinds of Power of Attorney?

Yes. In Ontario there are three kinds of Power of Attorney:

A Continuing Power of Attorney for Property (CPOA) covers your financial affairs and allows the person you name to make decisions for you even if you become mentally incapable.

A non-continuing Power of Attorney for Property covers your financial affairs
but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.

A Power of Attorney for Personal Care (POAPC) covers your personal decisions, such as housing and health care.

Does the law require everyone to have a Power of Attorney?

No. Making a Power of Attorney is voluntary. No one can be forced to make one.

What does the term “attorney” mean?

The term “attorney” refers to the person or persons you have chosen to act on your behalf. The person does not have to be a lawyer.

Is a Power of Attorney the same thing as a “Last Will and Testament”?

No. Your Last Will and Testament covers the distribution of your property after you die and only takes effect upon your death. A Power of Attorney only applies while you are alive and ceases to be effective upon your death.

Do I have to register my Power of Attorney with the government?

No. There is no requirement that these documents be registered. The government does not keep a registry. It makes sense, however, to make sure that the people in your life who need to know about these documents – especially
your attorney – have a copy or know where to get one if needed.

If I don’t make a Power of Attorney, will the government automatically step in if I can’t manage my own affairs?

No. In these circumstances a family member has the right to make your health care decisions or apply to become your “guardian” of property. Alternatively, someone else – such as a close friend – could apply to make decisions for you in
these matters. The government, through the Office of the Public Guardian and Trustee (OPGT), acts only in situations where it is legally required and where no other suitable person is available, able and willing.

For more information about applications for guardianship please see the brochure entitled “Becoming a Guardian of Property”.

Is my Power of Attorney valid?

If the document is properly completed, signed and witnessed, and you had the legal capacity to give the POA there are no further steps that need to be taken in order for it to be legally binding.

Please note the POA must be witnessed by two individuals who are eligible to serve as a witness. Some people, for example, your spouse and children, are not allowed to serve as a witness to you signing the POA.

Neither the Attorney General’s office nor the Office of the Public Guardian and Trustee keep a record of Power of Attorney documents, so there is no need to submit one in order for it to be legally binding. It is also not necessary to have a lawyer review the documents, although this may be helpful to ensure they are executed properly.

While not required under the Substitute Decisions Act, 1992, a person being asked to recognize a Power of Attorney may require a notarized copy of, or the opportunity to see the original Power of Attorney, before dealing with an attorney in place of the grantor. This requirement provides additional assurance that the attorney has authority. Requiring the attorney to produce the original for inspection or provide a notarized copy helps establish that the original document is still in existence and is in the attorney’s possession. As well, if a notarized copy is produced, it reduces the risk of potential fraud as the notary is required to
compare the original Power of Attorney to the copy prior to notarizing the copy.

If a witness to a Power of Attorney dies, does the Power of Attorney become invalid?

No. The subsequent death of a witness does not affect the validity of the Power of Attorney.

Do I have to use a lawyer to make my Powers of Attorney?

The law does not require you to use a lawyer’s services. However, you may wish to consider hiring a lawyer, especially if your affairs are complicated.

Where can I get Power of Attorney forms?

Only the most recent Power of Attorney is valid unless you state, in that document, that you intend to have more than one Power of Attorney.

Your lawyer can draft Powers of Attorney for you. Alternatively, some bookstores sell forms and there are also some forms on the Internet.

Obtaining legal advice in creating these documents is something you should
seriously consider

I am an attorney named in a Power of Attorney. What if someone refuses to accept the Power of Attorney?

It may have been that, despite the grantor’s best intentions, the document was not executed properly. For instance, although it is signed and witnessed, it may be that one of the witness signatures is not valid owing to the witness’s
relationship to the grantor or because the witness is also the appointed attorney.
It is also possible that the grantor lacked the required mental capacity to make a
POA.

If the POA is executed properly, there may be some policy reason that an institution (e.g. bank) in Ontario has not accepted it. In order to protect from fraud, many institutions establish policies around the acceptance of POAs. You
should discuss this with them.

You may need to seek legal advice if the POA appears to be validly made and
the institution still refuses to honour it.

Can a Power of Attorney be challenged?

Yes, but only a court has the final say.

The source for some of the information on this page is from the Office of the Public Guardian and Trustee. http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/livingwillqa.pdf