Power of Attorney

Frequently Asked Questions

Should you become so mentally or physically ill that you’re unable to make financial decisions or decisions about your personal care, a Will won’t provide you with any benefit. Because a will is only triggered on death, you’ll need something more. These important documents everyone should have are called Powers of Attorney and apply during one’s lifetime. Our Toronto wills and estate lawyers can prepare these Powers of Attorney. Armed with these documents and provided that they are prepared properly, a person (called the “Grantor”) can give another person (called the “Attorney”) legal authority to make certain decisions for the Grantor when the Grantor is unable or unwilling to make these decisions.

What types of decisions can an Attorney make?

There are two kinds of decisions which an Attorney can make for a Grantor – Decisions relating to financial matters and decisions relating to matters of personal care. A power of attorney relating to financial matters is called a Power of Attorney for Property and a power of attorney relating to personal matters is called a Power of Attorney for Personal Care. Our Toronto wills and estate lawyers have years of experience having drafted hundreds and hundreds of Powers of Attorney of both types.

What are financial decisions?

Decisions relating to financial matters are decisions that one makes relating to one’s day to day management of assets. For example, deciding to buy, sell or mortgage real estate are examples of the type of decisions that a Toronto Wills and Estates lawyer from our office can include in a Power of Attorney for Property. Other types of decisions relating to financial matters could include banking decisions (like depositing or withdrawing from a bank account), decisions like making charitable donations, decisions to buy or sell goods or materials, deciding to enter into a contract or lease, or to borrow or loan money. Simple acts such as signing a government form like a tax return or an application for government benefits can be done by an Attorney by way of a signed Power of Attorney for Property.

What are personal decisions?

Decisions relating to personal matters are all the decisions that a person makes about his or her own health care, safety, hygiene, shelter, clothing, or nutrition.

Who can give a Power of Attorney for Property?

Under Ontario law, a person (the “Grantor”) must be 18 years or older to give a Power of Attorney for Property and:

  1. The Grantor must know the extent of his or her assets as well as their approximate value;
  2. The Grantor needs to know what obligations he or she owes to those people for which he or she is responsible (called “Dependents”);
  3. The Grantor has to understand that the Attorney is able to do anything concerning the Grantor’s assets that the Grantor could do if the Grantor was capable of making decisions. (The only thing that an Attorney cannot do is sign the Grantor’s will);
  4. The Grantor must understand that his or her Attorney must show how he or she has dealt with the Grantor’s assets over time and show receipts for any expenses (called an “accounting”);
  5. The Grantor must realize that he or she may, if capable, cancel the Power of Attorney;
  6. The Grantor must realize that unless the Attorney manages his or her assets wisely the value of such assets may drop; and
  7. The Grantor must understand that there is possibility that the Attorney may abuse the authority given to the Attorney under the Power of Attorney.
When does a Power of Attorney for Property take effect?

Depending on your requirements, our Toronto wills and estate lawyers can draft your Power of Attorney to take effect once you sign it or at later date. We can specify that the Power of Attorney is only to be used, for example, on a certain date in the future or during a certain period of time or even upon the occurrence of a specific event. Many people believe that if the Power of Attorney for Property makes no mention of when it takes effect, then it is only effective when the person signing it becomes mentally incapable. This is not true. In fact, a Power of Attorney for Property which is unrestricted in its scope becomes effective immediately once it is properly signed and witnessed.

A Toronto Wills and Estate lawyer from our office can provide in the Power of Attorney that it only becomes effective on a future date or on the occurence of a certain event. A Power of Attorney may state that the Attorney can only use the document if the Grantor is mentally incapable of managing his or her property. One way this may be shown is producing a letter from the Grantor’s Doctor stating that in his or her opinion the Grantor is “mentally incapable of managing the Grantor’s property”.

What is incapacity to manage property?

A person becomes incapable of managing property if he or she is unable to understand information that is required to make decisions regarding the management of a person’s property, or can’t understand the consequences flowing from a decision or lack of decision.

How does the Attorney make decisions?

Your Attorney can make financial decisions for you at any time if your Power of Attorney does not contain any restrictions on when it becomes effective. If the Power of Attorney says that your Attorney can only make decisions on your behalf if you are incapable, once your incapacity is proven, your Attorney is allowed to make decisions about your property even if you object for as long as you are judged to be incompetent to make financial decisions.

How a Power of Attorney for Property be terminated?

Powers of Attorney for Property are cancelled or terminated when a Grantor or Attorney dies. Additionally our Toronto wills and estate lawyers can prepare a revocation of the Power of Attorney for Property or a new Power of Attorney which provides in it that it revokes any prior Power of Attorney for Property.

What happens if you don't have a Power of Attorney and you become incapable of making financial decisions ?

Uncertainty lies ahead for those who become incapable of financial decision-making and haven’t made arrangements to appoint an Attorney for property, since no one has an automatic right to make such decisions. A husband or wife, son or daughter, brother or sister, mother or father, – none of them have the right to make decisions for you if you don’t have a Power of Attorney for Property. Instead, someone may have to make a Court Application for permission to be allowed to make financial decisions for you. This person is called a Guardian of Property. The process of appointing a Guardian of Property is expensive, involves hiring a lawyer and is time consuming.

As an alternative to a Court Application, a person who may be incompetent would have to be interviewed or “assessed by someone called an “Assessor”. During such interview the Assessor determines if the person really cannot look after his or her property because they are truly incompetent in making financial decisions. If the Assessor decides that that the person is indeed incompetent, a government agency called the Public Guardian and Trustee (or the PGT) would start to look after the person’s property. The PGT would then be referred to as the person’s Statutory Guardian of Property.

Once the PGT is appointed as a person’s Statutory Guardian of Property, our Toronto wills and estate lawyers can explain to you how you can get the government (partially) out of your affairs. One of your relatives (or a spouse or partner) could replace the PGT as the Statutory Guardian of Property. In this way they could start to make decisions concerning the incompetent person’s property. But first there are certain rules and conditions that have to be followed.

One condition is the person wanting to be appointed has to complete very extensive forms and file a proposal with the PGT (called a “management plan”) showing how the person intends to take care of the incompetent person’s assets and giving a surety bond or security deposit.

The danger for incompetent persons is either having no relatives available or none that will agree to becoming a Statutory Guardian. In such case, the government will continue to look after the person’s property. Non-related persons, not even close friends, are prohibited from applying to the PGT to become Statutory Guardians of Property

What Can You Do?

Our Toronto wills and estate lawyers will show you how you can appoint someone to become your Attorney by signing a legal Power of Attorney for Property. Do so now before it’s too late. A Power of Attorney for Property is not just for the elderly. People can lose capacity in an instant as a result of a health event or accident. By contacting one of our Toronto wills and estate lawyers, we can show you how you can avoid the government stepping in to look after your finances or your spouse, partner, parent, child or sibling having to apply to the government to replace it as your subsitute decision maker, being forced to file a management plan and posting a surety bond or at great cost, making a court application to become your Guardian.

Powers Of Attorney For Personal Care

Using this kind Power of Attorney, our Toronto Wills and Estates lawyers will show you how you can choose someone now, while you are mentally capable, to be your personal care substitute decision maker. Signing a Power of Attorney for Personal Care when you are capabile allows a person whom you trust to make decisions for you about your personal care when are you incapable of making such decisions. For example, you might have definite wishes concerning the type of residence in which you may want to live if you become incapable. Furthermore you might have specific beliefs in the kind of medical treatment that you would want to receive. By signing a power of attorney for personal care you are appointing a person to make these kinds of personal decisions for you sometime in the future. These decisions are all the decisions a person can make about their own medical treatment, safety, hygiene, clothing, shelter, nutrition or health care.

Powers of Attorney for Personal Care differ from Powers of Attorney for Property in one key respect: They are not effective until a person becomes incapable of making personal care decisions. Remember, a Power of Attorney for Property is, unless it states otherwise, valid and can be used once it is signed. A Power of Attorney for Personal Care cannot.

If an Attorney under a Power of Attorney for Personal Care has a reasonable belief that you are incapable, he or she can start acting under the Power of Attorney and make personal care decisions for you. If you oppose such actions or if the Power of Attorney actually says that it cannot be used until you are proven to be incapable, then your family doctor or a person called an Assessor must then decide if you are capable or not.

Who can give a Power of Attorney for Personal Care?

A person must be 16 years of age or older to give a Power of Attorney for Personal Care and must:

  1. understand that the proposed attorney has a genuine concern for his or her welfare; and
  2. understand that the proposed attorney may have to make decisions for him or her.

The law lists six different kinds of personal care decisions: safety, shelter, hygiene, clothing, health care, and nutrition. Detailed instructions can be set out in your Personal Care Power of Attorney so that your Attorney knows and understands your wishs relating to some or all of these areas or you may decide to leave these matters strictly up to the Attorney. You can also include in your Power of Attorney a specific statements about future medical treatment and even make reference to “end of life” decisions. A Toronto Wills and Estates lawyer from our office will discuss these matters with you in greater detail.

How can you terminate a Power of Attorney for Personal Care?

Powers of Attorney for Personal Care are cancelled or terminated when a Grantor or Attorney dies. Additionally our Toronto wills and estate lawyers can prepare a revocation of the Power of Attorney for Personal Care or a new Power of Attorney which provides in it that it revokes any prior Power of Attorney for Personal Care.

What happens if you become incapable of personal care decision making without having

If you have to make a medical treatment decision and have been determined not to be competent do so and have no Power of Attorney for Personal Care, another law called the Health Care Consent Act provides for other designated persons to make these decisions for you. The Health Care Consent Act lists such persons in order of priority. The first person a doctor or health care provider would look to for making decisions on the incompetent person’s behalf would be the person’s spouse or partner, then his or her child, then a parent, then a sibling and finally, any other available relative. But these decisions only relate to medical treatment, not to the other areas of personal care matters.

If no relatives are willing and available to act as a treatment decision maker, then the health care provider would be forced to turn to the government for the consent (the PGT).

If the incompetent person is in need of a decision to be made which does not have to do with medical treatment but one of the other areas of personal care and there isn’t any Power of Attorney for Personal Care in place, a relative or friend would have to apply to the court to become appointed as a Guardian of the Person. Needless to say, this is very complicated, time consuming and expensive.

What Can You Do?

Sign your Power of Attorney for Personal Care now before it’s too late. A Power of Attorney for Personal Care is not just for the elderly. People can lose capacity in an instant as a result of a health event or accident. By contacting one of our Toronto wills and estate lawyers, we can show you how you can avoid the government stepping in and making personal care decisions for you or prevent your spouse, partner, parent, child or sibling of having to make a Court Application, at great expense, to become your Guardian.