Powers of Attorney Essentials You Need to Know

Do you want the government managing your finances? You’ll need powers of attorney to protect yourself. You must designate, in writing, persons to act as your agent.

In Ontario, there are two kinds of powers of attorney. Powers of attorney name substitute decision makers to handle a) your property (POAP) or b) your health-care decisions while you are alive.

“Property” includes your financial assets. Assets include cash and investments.  You do not need to own real estate to need powers of attorney for property. 

Powers of Attorney are Legal Documents

Yes, you need to have your power of attorney documents witnessed. Here are more rules to know:

1.           Capable — only when you are capable can you sign a POAP to make financial decisions. “Capable” is defined in the Substitute Decisions Act, 1992, S.O. 1992.

2.           Without a POAP — a relative, friend, or the Public Guardian and Trustee must apply to be appointed by a court to be your legal guardian of property. They then have access to your money to pay for your care and your bills. This is a costly, complex, and time-consuming process. This process can take months and requires appearances in court.

3.           Attorneys — can be anyone over 18 year of age; attorneys do not have to be lawyers. You can hire a trust company to act as your attorney for property. This is a good choice if you have no family or friends in Ontario that you trust. 

4.           Qualified witnesses for POAPs cannot be:

•             under 18 years of age or have a guardian

•             your attorney or your attorney’s spouse or partner

•             your spouse, partner, or child (spouse includes same sex, married, or common-law partner for at least a year or if a child is born)

5.           Incapable — means you cannot understand information about your finances or property or appreciate the consequences of making or not making financial decisions.

6.           Attorney’s powers — are unlimited, unless restrictions are contained in the POAP document. Attorneys cannot make or change your will.

7.           Attorneys for property can be paid — for their services. A government fee schedule is available. Attorneys for property may not, however, profit from their position, make or change your will, or transfer their authority to someone else. There is no government fee schedule for personal care attorneys.

8.           Revocation — you can cancel your powers of attorney any time if you are still capable. This should be done formally with help from lawyers.

9.           Attorneys for property are in a position of trust — and owe you duties of loyalty. They can be held accountable and must keep records. Choose your attorney wisely.

10.        Avoid DIY POAPs — be extra careful with homemade or do-it-yourself documents, especially if you own real estate or sizeable investments. Homemade POAPs may not be legal. Wherever possible, avoid using a power of attorney for property unless it is prepared by lawyers.

Want more information?

Do you have questions about powers of attorney? Meet me at my Toronto west-end office or by Zoom. You can discuss your needs and estate planning options.

Book your initial meeting now as I have limited availability. Set up a meeting today to discuss your powers of attorney. 

As a Certified Specialist, estate law is all I do.

Ed Olkovich