How Do I Revoke My Power of Attorney
Your Power of Attorney isn’t written in stone. Sometimes plans change and it’s best to revoke your Power Attorney. This is especially true when it comes to estate planning. For example, estate plans cannot provide for a change of heart or a falling out with a once trusted advisor.
As your life changes, your estate planning documents might need to change with it. So, it’s not uncommon to need an estate plan do-over. For this reason, so long as you’re mentally capable, you can tweak your Power of Attorney at any time by revoking it or cancelling it by creating a new one.
What Do My Powers Of Attorney Do?
The term “Power of Attorney” is often used to describe an agent relationship between yourself and your attorneys. Put simply, an “attorney” is someone selected to act in our best interests. Giving someone the “power” to act on your behalf is literally giving someone the power of being your attorney.
A Power of Attorney document is a written legal document that proves you have selected certain people to make decisions for you as your attorneys.
In Canada, the law recognizes decisions about property and personal care. Decisions of “property” relate to your assets and finances, while those of “personal care” have to do with your personal care, such as:
Health care
Nutrition
Shelter
Clothing
Hygiene
Safety
And so, it makes sense that we have two types of Powers of Attorney:
A Power of Attorney for Property, also known as a Continuing Power of Attorney (C-POA); and,
A Power of Attorney for Personal Care (POA-PC).
If need be, both types of Powers of Attorney can be successfully changed (either revoked or cancelled.)
Rules To Revoke A Power Of Attorney
To revoke a Power of Attorney, you must create and complete something called a Statement of Revocation. To do this, you must satisfy three requirements:
Be mentally competent
Draft and execute a Statement of Revocation
Notify people that you’ve revoked your Power of Attorney
Step 1: Mental competency
Generally speaking, if you are incapable of making a new Power of Attorney, you are incapable of revoking an existing one.
Power of Attorney for Property/Continuing Power of Attorney
Under Ontario law, you are considered mentally competent to revoke a C-POA so long as you:
Know the approximate value of your assets and finances
Know your obligations to dependents (if any)
Know that a Power of Attorney enables someone to make decisions on your behalf (except make a Will)
Know your attorneys will keep strict records and accounts of their decisions
Know you can revoke the Power of Attorney
Understand your attorneys may cause a depreciation in the value of your property and/or financial portfolio
Understand your attorneys may misuse their authority
Power of Attorney for Personal Care
Under Ontario law, you are considered mentally competent to revoke a POA-PC so long as you:
Understand your attorneys are genuinely concerned with your well-being
Understand your attorneys may make decisions for you
Step 2: Draft and execute a Statement of Revocation
Revoking a Power of Attorney is just as simple as creating one from scratch. To successfully revoke your Power of Attorney, you must complete a document called a “Statement of Revocation.”
Don’t worry—there is no prescribed format to follow, and you don’t need a law firm, lawyer, or notary. Just take a pen to some paper, find two qualified witnesses, and you’ll be good to go.
Be mindful that not needing a lawyer to draft something doesn’t mean you don’t need legal advice or legal information, so be sure to seek out legal advice or legal information whenever you feel you need it.
That said, it must be expressly written in your Statement of Revocation that you are revoking your C-POA, or POA-PC, as the case may be. You must also sign it in the presence of two qualified witnesses. Be mindful that your witnesses cannot sign the document without having witnessed your signature.
Who can witness a C-POA?
Under Ontario law, witnesses cannot be any of the following for a C-POA:
Your attorney
Your spouse or partner
Your attorney’s spouse or partner
Your child
A person with whom you have a parent/child relationship
Anyone under 18 years old
The same person who witnessed your C-POA
Who can witness a POA-PC?
Under Ontario law, witnesses cannot be any of the following for a POA-PC:
Your attorney
Your spouse or partner
Your attorney’s spouse or partner
Your child
A person with whom you have a parent/child relationship
Anyone under 18 years old
Anyone who has a “Guardian of Property” or a “Guardian of the Person”
The same person who witnessed your POA-PC
Step 3: Let others know about your decision
Technically, you aren’t required to give notice to anyone about the changes you make to your Power of Attorney, but, as a good rule-of-thumb, you might want to give a copy to a few key parties. You should notify anyone who knows about your Power of Attorney about its revocation, and they should receive a signed copy of the revocation.
Even if someone doesn’t know about the original Power of Attorney, so long as they are involved in managing your finances, assets, information, or personal care, it’s a good idea to let them know about the revocation.
Don’t forget to give a signed copy of the Statement of Revocation and a copy of any new Power of Attorney you may have enacted to anyone helping you with your property or personal care.
For example, are you taking-back your POA-P? Then let your financial planner know. Are you taking-back your POA-PC? Then notify your health care provider or caregiver.
You’re not breaking the law if you don’t give notice to others about changes to your Power of Attorney, but the last thing you want is any confusion over who your attorney is—especially after you’ve become incapable and can’t set the record straight yourself.
So, in addition to giving notice, if you’ve ever given out a carbon copy or extra original then follow up on where those copies are and get them back. Once you’ve retrieved any copies or originals, destroy them.
A Cancelled vs. Revoked Power of Attorney
You can cancel or revoke a Power of Attorney at any time without notice. And if you already know someone else you would rather have as your attorney, then you may prefer to skip the revocation step altogether and opt to cancel.
An old Power of Attorney will be canceled out when you create a new one, i.e., only the most recent Power of Attorney is valid. For this reason, a lot of people find it simpler to enact a new Power of Attorney while never formally taking-back the old one (in essence, eliminating step 2 above.)
But remember, you must have the mental competence to enact a new legal Power of Attorney. And, while it’s not required, you should always give people notice about your decision to have appointed a new Power of Attorney, retrieve any copies and originals of the now cancelled Power of Attorney, and destroy them.
Why revoke when I can just cancel?
Sometimes, it’s easier to know who you don’t want to be your attorney than to know who you do want. Having an active Power of Attorney for an attorney you don’t trust, or feel doesn’t represent your wishes, can lead to some pretty severe consequences—an extreme example being an attorney who doesn’t understand your end of life wishes.
A Statement of Revocation allows you to take the time you need to make sure you are protecting yourself, and invariably your loved ones, by picking someone else as the right person for the job. Always remember, just because it may seem easier to cancel, doesn’t mean it’s always better.
