Wills and Estates
Powers of Attorney in Ontario, What They Are and Why You Need Both
A will decides what happens after you die. A power of attorney decides what happens if you are alive but unable to make decisions for yourself, which is a situation far more people will actually face. It is the part of estate planning most likely to be put off and most likely to be needed.
The two documents, and why one is not enough
This is the single most common misunderstanding. People sign one power of attorney and assume they are covered. Ontario has two, made under the Substitute Decisions Act, and each one only covers its own subject matter. A property document gives nobody any authority over your health care.
| Continuing power of attorney for property | Power of attorney for personal care | |
|---|---|---|
| What it covers | Your finances and property, such as banking, bills, investments, and dealing with your home | Personal care decisions, which the Act defines as health care, nutrition, shelter, clothing, hygiene, and safety |
| Minimum age to make one | 18 | 16 |
| When it can be used | Can be used while you are still capable if you allow it, and continues if you become incapable | Generally only takes effect once you are incapable of making the decision |
| Witnesses | Two, both of whom must sign | Two, both of whom must sign |
The word continuing is doing important work in the first one. A continuing power of attorney for property carries on after you lose capacity, which is precisely the moment you need it. A power of attorney for property that is not continuing stops working at that point, which defeats the purpose for most people.
Who can act as your attorney
Your attorney is simply the person you appoint. It does not need to be a lawyer and usually is not. Most people appoint a spouse, an adult child, or a trusted friend.
What matters is judgment and willingness. This person may end up managing your money, dealing with your bank, or making decisions about your care in a hospital. Choose somebody organized, honest, and prepared to act, and have the conversation with them first rather than surprising them later. You can appoint more than one person, and if you do you should be clear about whether they must act together or can act alone.
Witness requirements, who can and cannot act as a witness
Both documents must be signed in front of two witnesses, and both witnesses must sign as well. The Act then lists people who are not permitted to witness, and this is where do it yourself documents most often fail.
The following people cannot act as witnesses.
- The attorney you are appointing, or that person's spouse or partner.
- Your own spouse or partner.
- Your child, or somebody you have treated as your child.
- A person whose property is under guardianship, or who has a guardian of the person.
- Anybody under the age of 18.
In practice this rules out most of the people sitting at your kitchen table, and is one reason kits signed at home so often turn out to be invalid. Ontario also permits witnessing over audio and video, provided at least one witness is a lawyer or licensed paralegal, although the document still has to be printed and signed in ink.
Does a power of attorney need to be notarized
No. Notarization is not required for a power of attorney to be valid in Ontario. What the law requires is proper signing and two qualifying witnesses.
Notarizing can still be worth doing in certain situations. Banks and other institutions sometimes ask for a notarized copy, and if the document will be used outside Ontario or outside Canada, notarization is often expected before it will be accepted. If either of those is likely, it is easier to deal with at the time of signing than years later.
What happens if you do not have one
Nothing automatic. This is the point most people get wrong, and it is worth being blunt about. Your spouse does not automatically gain the right to manage your finances, and your adult children do not either. Being next of kin is not the same as having legal authority.
If you lose capacity without a power of attorney in place, the Office of the Public Guardian and Trustee is entitled to step in and make decisions where nobody has been appointed, and it charges fees for everything it does. The alternative is that somebody applies to become your guardian of property, which involves the court, takes time, costs money, and happens at the worst possible moment for your family. All of it is avoidable with two documents signed while you are well.
Keeping them useful
- Tell your attorney where the original is kept. A document nobody can find helps nobody.
- Review them after a major life change, such as a marriage, a separation, a death, or a falling out with the person you appointed.
- Remember that a bank form usually only covers that one bank. It is not a substitute for a proper power of attorney.
Powers of attorney are included in the fixed fee will packages at James Deep Law, so most clients deal with the will and both powers of attorney in a single appointment.
Frequently asked questions
What is a power of attorney in Ontario?
It is a legal document in which you appoint somebody to make decisions for you. Ontario has two kinds, a continuing power of attorney for property covering your finances, and a power of attorney for personal care covering decisions about your health, housing, and daily care.
Do I need both types of power of attorney?
Yes. Each document only covers its own subject matter, so a property power of attorney gives nobody authority over your health care decisions, and a personal care document gives nobody authority over your bank account. If you become incapacitated with neither in place, the Office of the Public Guardian and Trustee is appointed as of right to make your health and financial decisions, and it charges you fees for doing so.
Who cannot witness a power of attorney in Ontario?
The attorney you are appointing or their spouse or partner, your own spouse or partner, your child or somebody you treat as your child, a person whose property is under guardianship or who has a guardian of the person, and anybody under 18. Both witnesses must sign the document.
Does a power of attorney need to be notarized in Ontario?
No. Proper signing in front of two qualifying witnesses is what makes it valid. Notarizing can still help if a bank asks for a notarized copy, or if the document will be used outside Ontario or outside Canada.
What happens if I do not have a power of attorney?
Nobody gains authority automatically, including your spouse or your adult children. The Office of the Public Guardian and Trustee is entitled to step in where nobody has been appointed, and it charges fees for everything it does. Otherwise somebody would have to apply to the court to be appointed your guardian of property, which takes time and money and happens at a difficult moment.
When does a power of attorney take effect?
A continuing power of attorney for property can be used while you are still capable if you permit it, and continues after you become incapable. A power of attorney for personal care generally only takes effect once you are incapable of making the particular decision.
Wills and estates
Get both documents in place
Powers of attorney are included in the fixed fee will packages at James Deep Law, so most clients complete the will and both powers of attorney in a single appointment.
This article provides general information about Ontario law and is not legal advice. For advice about your own situation, please contact James Deep Law.