Power Of Attorney in Ontario—Some Frequently Asked Questions
By Jan Jaluvka
Knowledgeable, experienced lawyers can help ...
What is a Power of Attorney?
It is a legal document which authorizes another person to act on your behalf.
Is there more than one type of such a document?
Yes. Ontario law allows for three types. They are:1. A Continuing Power of Attorney for Property
2. A Non-Continuing Power of Attorney for Property
3. A Power of Attorney for Personal Care
What is a Continuing Power of Attorney for Property?
A It is a written legal document in which you give another person (your “Attorney”) the power and authority to make decisions concerning your property and financial affairs. It is called “Continuing” because it will continue in effect even if at a later time you should become mentally incapable of making these decisions on your own behalf.
What is a Non-Continuing Power of Attorney for Property?
It is a written legal document giving the same power and authority as the above-mentioned Power of Attorney. However, as the name suggests, it would not continue in effect should you subsequently become mentally incapacitated. This type of document is often used for a limited, specific purpose such as enabling another person to complete the legal paperwork for the sale of your home in the event that you are away elsewhere at the time.
What is a Power of Attorney for Personal Care?
A Power of Attorney for Personal Care is a written legal document in which you give another person (your “Attorney”) the power and authority to make decisions relating to your medical and personal care in the event that subsequently you are unable to make these decisions on your own behalf.
Why should I have a Continuing Power of Attorney for Property?
With such a Power of Attorney you decide who will step in with the required legal authority to make financial decisions if you become unable to do so. This document allows you to select the best person available to serve as your Attorney and in doing so you eliminate any uncertainty that might otherwise arise concerning which person should fill this role if you become unable to make these decisions.
If you do not have this Power of Attorney, a member of your family or someone else will be put to the time, trouble and expense of having to apply to the Office of the Public Guardian and Trustee of Ontario or, in some cases, to the Court to be appointed as Guardian of Property to act on your behalf. Needless to say, this is a legal proceeding to be avoided whenever possible. If you have a Power of Attorney for Property, you can choose who will act on your behalf. If you don’t have one, the Government or the Court chooses for you.
Why should I have a Power of Attorney for Personal Care?
This type of Power of Attorney enables you to take control of your future medical and personal care in the situation where you are no longer able to make such decisions. By choosing as your Attorney someone familiar with your situation and your wishes, you gain considerable comfort and assurance knowing that proper decisions will be made on your behalf.
You and your family also secure some peace of mind. Knowing your wishes in advance can relieve your family members of the otherwise heavy and stressful burden of making life and death decisions without knowing what you would have wanted. This can also spare them the guilt feelings which often flow from these difficult circumstances.
Who can I choose as my Attorney when making a Power of Attorney?
Ontario law permits you to appoint any person you wish including someone who resides outside Ontario. However, the person chosen must be at least eighteen years of age to act as your Attorney for Property and at least sixteen years of age to act as your Attorney for Personal Care .
Can I appoint more than one person to act be my Attorney?
Yes. You can have more than one Attorney, whether it be in a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care. If you choose more than one person you can determine whether they must make decisions together in agreement with one another (acting ”jointly”) or whether any one of the persons chosen will be entitled to make decisions with or without the approval of the other(s) (acting “severally”). Where you choose only one attorney it is advisable to select a second person to serve as a substitute or “backup” in the event that the first person chosen is unable to act as your Attorney for any reason.
What questions should I ask myself when choosing someone to act as my Attorney?
1. How close to you personally is the person you are considering? If you are married and your spouse is up to the task, then he or she is the most likely choice. If not, then another close family member such as a sibling or an adult child would probably suffice.
2. How close in terms of distance or proximity is the person you are considering? For reasons of convenience it is preferable to have your Attorney who lives nearby rather than on the other side of the country.
3. Can the person you are considering be counted on to act properly and make decisions on your behalf which you would approve of if able to do so? When choosing an Attorney for Property you must be satisfied that the person chosen will prove to be honest, conscientious and capable of handling your finances.
In the case of an Attorney for Person Care you should feel confident that the person has both the level-headedness and sensitivity to handle the extremely difficult, sometimes delicate, decisions involved in dealing with serious or terminal illness.
What powers and authorities will my Attorney for Property have?
Unless you put specific restrictions in place, your Attorney for Property will have the same freedom to make decisions and take actions concerning your property and financial affairs that you would have, if able. Paying bills, signing documents and making investments are but a few examples of what your Attorney would be empowered to do on your behalf. There are two things which your Attorney for Property is not permitted to do on your behalf. The first is to make a new Continuing Power of Attorney for Property; the second is to make a Last Will and Testament.
Am I free to cancel or change a Power of Attorney after I give it?
Yes. Provided your are mentally capable, you can cancel or revoke a Power of Attorney previously given and have a new Power of Attorney prepared and signed reflecting any changes you wish to make.
Will my Attorney be entitled to receive payment or compensation?
Yes. Unless your Power of Attorney states otherwise, Ontario law gives your Attorney the right to receive payment for work done on your behalf. Payment is awarded pursuant to a fee schedule set by statute. However, where you choose a close family member as your Attorney, normally, they are serving out of natural love and affection for you. In this case you would provide in your Power of Attorney document that no compensation be paid to your Attorney.
Are there certain legal requirements which must be complied with in order to create a legal and valid Continuing Power of Attorney for Property and Power of Attorney for Personal Care?
Yes. There are and it is essential that these legal requirements be observed. Failure to follow them can result in a Power of Attorney being rendered null and void and of no legal effect. This can result in serious and, in some cases, catastrophic consequences.
If you are contemplating giving a Power of Attorney in Ontario you should obtain proper legal advice from a knowledgeable, experienced lawyer who practices in this particular area of the law.
For other legal articles dealing with this area of law see the following: Where There’s A Legal Will There’s A Way—Your Way
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