Ontario Powers of Attorney for Property Summary
Will you become a victim because you don’t have a power of attorney (POA)?
Power of Attorney for Property Essentials
You need two qualifying witnesses to sign this legal document.
In your POA, you can:
- choose an attorney and alternate to make financial decisions
- restrict your attorney’s powers in the document
- specify what compensation your attorney receives
Usually once you sign a POA, it can be used. POAs do not need to be registered, except to sell real estate.
POAs are automatically cancelled upon your death.
POAs can be revoked if you are capable. I’ll explain that in a moment.
There are two kinds of POAs for property: general or continuing.
General Powers of Attorney
You would use this POA mostly for limited or short-term purposes. For example, while you are on vacation. These forms may be supplied by your bank or investment advisor.
Since the Ontario Substitute Decisions Act, 1992 was passed, you would likely sign a continuing powers of authority.
Your benefit is clear. Your attorney can act when you are incapable.
Continuing powers of attorney continue to authorize your attorney if you become incapable. Other jurisdictions also use the term “enduring” to mean the same thing.
To make a property POA, you must have legal capacity. This is defined in the Substitute Decisions Act, 1992. You need to be aware of these factors.
Capacity to give continuing power of attorney
8. (1) A person is capable of giving a continuing power of attorney if he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(c) knows that the attorney will be able to do on the person’s behalf anything
in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30, s. 8 (1).
You POA can automatically be revoked by signing a new POA.
If you act as attorney, you must be available, assume legal duties and keep records.
Are you moving out of Ontario or holding assets in another jurisdiction? You may need new or additional POAs.
Your Ontario PAO for property may not be recognized out of Ontario.
Finally, you should know there is a different POA for health or personal care decisions. For comparison, here are some details:
Power of Attorney for Personal Care
- designates a person for health-care issues
- must be written and requires witnesses
- can be revoked
- can provide direction and guidance for choices
- valid only when you can no longer make decisions yourself
- attorneys need to keep records of decisions they make
- compensation is not specified
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Edward Olkovich (BA, LLB, TEP, and C.S.) is an Ontario lawyer, nationally recognized author and estate expert. He is a Toronto based Certified Specialist in Estates and Trusts. Edward has practiced law since 1978. © 2014Posted In: Powers of Attorney On: April 3rd, 2014