How To Get Power Of Attorney In Ontario
Decisions, decisions. Do you stop for a coffee on your way to work? Should you move to a new city? We make tons of decisions every single day. And while not all of them are a big deal, the fact that you get to make your own decisions is. So, what happens when we can’t make our own decisions anymore? While it’s hard to think about, it’s important to consider.
Many people eventually need extra support taking care of their affairs due to mental or physical impairment. That’s where a legal document called a Power of Attorney (POA) becomes very important.
Power of Attorney meaning
The term “Power of Attorney” is used to describe a relationship. An “attorney” is someone we select to act in our best interests. A Power of Attorney is a legal document that proves you selected someone else to act on your behalf and make decisions.
Granting this power is a big deal because your attorneys will decide on things from financial investment to health care. While a Power of Attorney doesn’t have to be a certain format, prepared by a lawyer, or even notarized, there are many things to consider and requirements to keep in mind when creating one.
Why Should I Make Powers Of Attorney?
A POA is often most helpful if you’ve become mentally or physically incapable of caring for yourself. And the best time to create a Power of Attorney is while you have the capacity to do so.
Even if it doesn’t feel necessary right now, it’s important to think about it while you’re still mentally capable. Yes, it’s a sensitive topic, but completing POAs should bring you peace of mind and certainty.
Choose an attorney carefully
Now, not everyone is fit for the job. Your brother might be someone you trust, but is he penny-wise? Additionally, without a POA, whoever tries to step in will be subject to a lengthy and often expensive administrative and court process.
But don’t worry! These pitfalls are easily avoidable—just choose someone fit for the job and create a POA.
Different Types Of Power Of Attorney
Legally, our decisions are housed under one of two roofs: property and personal care.
Decisions about “property” relate to our stuff (like a new condo or a bank account) while decisions about personal care relate to our health (like new glasses or end-of-life wishes.)
Having two forms of attorneys (property and personal care) makes sense; it helps you ensure specific people are set up to help you with certain decisions, should you need.
Power of Attorney for Property (a.k.a, “Continuing Power of Attorney”)
An attorney who helps you with your property, assets, and finances is empowered through a “Continuing Power of Attorney”, which activates before you’re incapable and continues through to your incapacity. Non-continuous POAs are pretty uncommon.
Springing Power of Attorney
You can limit the activation of your POA. This is most commonly done based on mental incapacity (e.g., your attorney can make decisions on your behalf only if you become mentally incapable). This is known as a “Springing Power of Attorney” because the power literally springs-up upon a certain event or date.
A Springing POA can be preferable because it limits your attorney’s ability to act without cause. Note that a Springing POA is not better or worse than other types. It comes down to how much power you want to give, and when.
No matter what, your attorney can never step perfectly into your shoes. For example, Ontario law provides that your attorney for property can do anything on your behalf with respect to your property except make a Will.
You can also limit the POA. For example, you can assign an attorney to manage your house, but not your bank accounts.
Ultimately, selecting and creating a POA is a very personal process and there’s plenty of opportunities to craft one that suits your individual needs.
Power of Attorney for Personal Care
Someone who helps you with your personal care (e.g., health care, nutrition, shelter, clothing, hygiene, safety) is called an attorney for personal care and is empowered through your POA for Personal Care (POA-PC.)
Most POA-PCs are springing, and become active upon a declaration of incapacity made by qualified assessors and/or physicians. It can also contain clauses specifying end-of-life wishes (like a DNR) or specifications of where you wish to receive the majority of your care (e.g., your home versus a medical facility.)
How Do I Make A Power Of Attorney?
In Ontario, a person is capable of creating a POA so long as they meet the following criteria.
Power of Attorney for Property (POA-P)
To appoint an attorney for property, you must:
Be at least 18 years old.
Know the approximate value of your property, assets, and finances.
Know the obligations to dependents if any.
Know that a POA enables someone to make decisions on your behalf (except make a Will).
Know your attorney will keep strict records and accounts of their decisions.
Know the POA can be revoked.
Understand your attorney may cause a depreciation in the value of your property.
Understand your attorney may misuse their authority.
Power of Attorney for Personal Care
To appoint an attorney for personal care, you must:
Be at least 16 years old.
Understand and appreciate that your attorney has genuine concern for your welfare.
Appreciate that your attorney will make decisions for you.
Be mindful that even if you’re incapable, you may still have the capacity to make a Power of Attorney for Personal Care.
Who Should You Pick To Be Your Attorney?
Be sure to pick someone you trust. Property and personal care require different skills, so be sure to select someone best suited for the job.
You can pick the same person to be your attorney for both (which is pretty common in spousal relationships) or you can pick different people for each job.
Regardless, whoever you pick should meet these minimum legal requirements:
An attorney for property must:
Be at least 18 years old.
Act only in your best interests.
Find and read your Will to ensure they don’t liquidate an asset that you have specifically planned for.
Keep accounts of all the transactions they perform on your behalf. This is more than keeping receipts in a shoebox—there are very specific rules about keeping accounts and your attorney must know these rules and be able to abide by them.
Perform their duties as attorney with diligence, honesty, and integrity, and in good faith for your benefit. This may include a requirement to consult you and/or your caregiver, supportive family, and friends before making decisions on your behalf.
How you assess whether your attorney has acted diligently and in good faith will depend on whether or not they are compensated. A compensated attorney is held to a higher standard (i.e., that of a person in the business of managing property for others) while a non-compensated attorney is held to a lower standard (i.e., ordinary prudence in conducting your own affairs.)
An attorney for personal care must:
Be at least 16 years old, act diligently, in good faith, and in your best interests and be able to explain their powers and duties once you become incapable. They must also keep diligent and comprehensive accounts of their decisions, such as:
A list of all health care, safety, and shelter decisions along with their reasons;
Copies of all medical reports and similar documents;
The names of those consulted when making decisions (which should always include you);
A description of your wishes that you made when you were capable;
A description of your wishes made while you were incapable, if available; and
Your attorney’s opinion as to whether their decision affects the quality of your life and risk of harm.
Your attorney for personal care cannot give you healthcare, residential, social, training, or support services in exchange for compensation unless they are your spouse, partner, or relative.
The Power Of Attorney Document
There is no one way to create a legally binding POA. That being said, there are certain things different types of POAs should always include depending on the circumstance.
Continuing Power of Attorney
A POA-P must be expressly called a “Continuing Power of Attorney”, or it must expressly note that the POA is effective from the date it’s signed through to your incapacity.
More than 1 person as attorney
Make sure the document outlines the relationship between your multiple attorneys. Without an express clause, your attorneys are deemed to act together and unanimously.
More than 2 people as attorneys
Consider some of the following decision-making rules you can include, such as majority rule, giving someone a veto power, or giving certain people voting powers above others.
A POA must be signed in the presence of two witnesses. Witnesses cannot be any of the following:
Your spouse or partner
Your attorney’s spouse or partner
A person with whom you have a parent/child relationship
Anyone under 18 years old
If you create a POA that does not adhere to the above requirements a court could still find the POA binding—but don’t count on it. Be safe, and make sure your documents are legal.
There are some situations that will require a more bespoke POA, like if your selected attorney lives outside of Ontario, in the United States, or you own property outside of Canada.
Can my attorney live in a different country?
A U.S. resident has different tax implications than what we’re familiar with here in Canada, and so, it’s usually better to select an attorney who lives in Canada and is unlikely to relocate outside the country.
Similarly, rules regarding the management of property, assets, and finances change from country to country. Accordingly, it would be best to seek specific advice on your situation if you find yourself with a more international portfolio.
With respect to personal care, there is no guarantee that jurisdictions outside of Ontario will respect your personal care wishes or uphold your Power of Attorney for Personal Care. If you spend a lot of time outside of Ontario, like, say, at the family cottage in Quebec, be sure to check that your attorney’s authority will be recognized there just as it would be at home.
If you’re facing some of these complexities and aren’t sure how to structure your POAs, reach out to a lawyer for legal advice.
Ways To End Your Powers Of Attorney
A Power of Attorney ends upon any of the following:
Your attorney (and any alternates) die, become incapable, or resigns.
A court appoints a guardian over your property or person.
A new POA is signed.
You can always revoke a Power of Attorney and pick someone else. Just as you’re capable of creating a POA, you can revoke one as well. Revoking a Power of Attorney requires the same formalities as it took to create it.
It’s not easy being someone’s attorney for property or attorney for personal care—so, it makes sense that the law allows you to compensate your attorney for property or attorney for personal care.
Whether you’d like your attorney to be compensated or not compensation, be sure to put those terms directly into the POA. Powers of Attorney that don’t specify compensation leave the door open for your attorney to seek compensation through a court process.
The laws surrounding how much a court will award an attorney differ between attorneys for property and personal care. And so, it’s advisable to always clearly state your compensation expectations to avoid confusion and cost down the road.