Power of Attorney in Ontario, Canada: What is it, How to Get & Activate it

In Ontario, the power of attorney is a legal document that allows an individual to appoint someone else (the attorney) to make legal, financial, medical, and personal decisions on their behalf when they are unable.

Before making your own power of attorney in Ontario, it’s essential to know what this process entails and how it can help if you become unable to make decisions yourself. 

If you have been wondering how a power of attorney in Ontario works and why it’s important, then you’ve come to the right place. Once you read through our guide, choosing an attorney should be easy as pie.

This article will talk about what a power of attorney in Ontario is, who can apply for one, how they work, and some things you should consider before applying for one. If you are thinking about appointing someone as your attorney, this blog post will give you an overview to help you make that decision.

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What is Power of Attorney in Ontario, Canada?

What is a power of attorney in Ontario?  It is a legal document that allows you to give someone else the power to make decisions and act on your behalf. That person is your attorney. 

The power can be general (covering all of your affairs) or limited (power over specific acts). Some common acts are paying bills, investment of specific assets, sale of property, or healthcare decisions.

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What are the Types of Powers of Attorney in Ontario?

Ontario has two (2) types of power of attorney documents: 

1. Power of attorney for property.
2. Power of attorney for personal care. 

Power of Attorney for Property in Ontario (i.e. “Continuing Power of Attorney”)

In Ontario, a power of attorney for property (POA-P) is responsible for making decisions about your property or finances when you are medically incapacitated. Examples are managing your investments, paying your bills, or collecting any money owed to you.

Your power of attorney for property can be continuing or non-continuing. 

• A continuing power of attorney for property is designed to remain in effect unless and until you cancel it, while a non-continuing POA for property ends if you become mentally incapable.
• A non-continuing power of attorney is typically used for a limited time.

For example, you could give a non-continuing power of attorney so that, say, someone can take care of your financial affairs while you’re traveling.

Who Can You Appoint?

Your power of attorney for property has to meet specific criteria. An attorney for property in Ontario must:

• Be at least 18 years old.
• Possess the mental capacity to make financial decisions. To determine this, you’ll need to provide information such as employment references or pay stubs and letters from people who know them. 
• Act only in your best interests and carry out their duties with honesty, diligence, and integrity. This may involve consulting with you and your caregiver, supportive friends, or family members before making decisions on your behalf.
• Read your Will to avoid liquidating an asset that you have specific plans for.
• Keep proper records of all the transactions they perform on your behalf and abide by the rules associated with maintaining these accounts.

Unless you state otherwise, once you pick someone to be your POA for property, they can begin making decisions about your financial interests right away.

Thus, you may want to include a clause in your power of attorney limiting your attorney’s authority to decisions only if you become mentally unsound.

Power of Attorney for Personal Care in Ontario

Your power of attorney Ontario for personal care will just deal with matters related to your health and welfare if you cannot communicate yourself. This power generally includes the right to make healthcare and personal care decisions on your behalf, such as whether or not you want to stay in a hospital or convalescent home.

They should also be able to communicate advanced directives and life support measures as outlined in your will or power of attorney. Your power of attorney for personal care may also have the power to appoint someone else if they can not be present when decisions need to be made.

Your power of attorney for personal care should be someone who is familiar with your wishes and has good judgment. This is usually a spouse, relative, or close friend. You can appoint a Power of Attorney for Personal Care if you are 16 years or older and mentally capable.

To be considered mentally capable, you need to understand that the person being named is genuinely concerned about your standard of living.

A power of attorney Ontario for personal care does NOT include power over your property (money, investments, real estate, etc.) and no power of law unless specified in the power of attorney document. 

Who Can You Appoint?

Your power of attorney Ontario for personal care must meet these requirements:

• They must be at least 16 years of age,
• They must be mentally capable
• Such person can not be someone being paid to provide you with medical care, residential, training, social, or support services.
• A person being paid to offer you any of these services can only be your attorney if they are also your spouse, common-law spouse, or relative.
• Above all, you should select someone whom you trust to follow your instructions. You can name more than one attorney to make decisions for you in a collaborative manner. You also may designate an alternate to take over if the principal attorney is unavailable or unable to act for any reason.

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How is a Power of Attorney for Personal Care different from a Living Will?

A power of attorney for personal care is similar to a living will in that it allows you to make arrangements for your medical and end-of-life care. However, a power of attorney for personal care is different because it deals with health or welfare issues if you are unable to communicate yourself (unlike a living will which is a document that contains instructions on whether you want to be kept alive by medical machines if there is little hope for recovery.

In a living will, the person specifies what type of medical care they would be willing to take and when health treatments should be discontinued. Although it can be in any written form, a living will often constitute part of a Power of Attorney for Personal Care.

Legally, there is no such thing as a “living will” in the province of Ontario. What many people call a living will is a document that lists your end-of-life medical wishes. Your documented medical instructions in Ontario are legally known as an ‘advance directive.’

It lists your treatment and personal care wishes. However, including these instructions in your power of attorney documents is perfectly legal. Your attorney is required by Ontario law to follow any instructions and wishes you have outlined in your power of attorney or advance directive.

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Why Should Ontarians Have a Power Of Attorney?

If you are the parent of young children or plan to have a family, power of attorney documents can ensure your wishes concerning your personal care and end-of-life treatment are followed.

For example, say that you are in an accident that leaves you unable to speak. A power of attorney for personal care would ensure that someone can care for your needs and make medical decisions on your behalf.

Your power of attorney also makes it easier to fill out forms like the one you will need when you apply for Ontario Health Insurance Plan (OHIP) coverage. 

Unlike many people believe, a power of attorney is not only for the elderly and those contemplating end-of-life care. POA documents can protect you in the event of incapacitation irrespective of your age. This includes any form of physical accidents or medical emergencies.

A power of attorney is something you hope you never need to use, but it can protect your financial security as well as personal decisions should you become incapacitated. It provides peace of mind and certainty. You can think of it as a form of disability insurance that protects you while you’re alive.

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What Makes Your Power of Attorney in Ontario Legal?

There are specific criteria that must be met for Power of Attorney to have legal standing in Ontario. These include:

• The document must be saved as a physical copy (Printed and cannot be stored online)
• You must be eligible and not under any outside coercion.
• Two witnesses must witness your signing of the power of attorney Ontario document.
• Witnesses may not be family members, beneficiaries named in the power of attorney document, or anyone under eighteen years old. Wills and Powers of Attorney can now be witnessed virtually in Ontario.
• The document must be explicitly labeled “Continuing Power of Attorney,” or say from the date offered until your incapacity.
• If you have more than one attorney, ensure the document explains their relationship to each other. Unless otherwise specified, multiple attorneys are assumed to work together on any task assigned to them.
• If you have more than two attorneys, consider the following decision-making rules that could be included to get things done: a majority rule, the ability for someone to veto certain decisions, or deciding an attorney has voting powers over another.

In Ontario, you are not required to notarize your power of attorney. If you followed the requirements for signing and witnessing, then you have legal power of attorney document!

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Advantages and Drawbacks of Having a Power of Attorney in Ontario

Advantages:

Responsibility

Getting a power of attorney provides clarity about who will take care of your property and money in the event that you can’t manage them on your own, even temporarily. Your attorney is required to care for your property and manage it. They can be held accountable legally if they fail to do so correctly.

Flexibility

You can make your power of attorney document as general or specific as you need. You can decide to appoint two or more attorneys and require that they make all decisions jointly or separately if one of them is unavailable. You can also appoint successive or alternate attorneys. Having two or more attorneys assigned to your case could reduce the likelihood that a power of attorney is used fraudulently.

Protection from Family Conflict

A power of attorney allows the power holder to temporarily manage the property for another person. This reduces conflict that could arise between spouses, children, and other relatives should an incapacitated individual have a power of attorney document. If disputes were left to family members to resolve, it could lead to substantial delays in care for the incapacitated individual.

Convenience

A general power of attorney document allows a person you trust to act on your behalf.

An enduring power of attorney continues that permission and can take over if you become unable to manage any affairs.

If someone has the authority from this document, they will make decisions for you without going through the time-consuming and expensive court process.

Drawbacks:

You may be vulnerable to financial abuse

If you choose an untrustworthy attorney it may lead to mismanagement of your money and property or making decisions that aren’t in your interest.

There may be a power of attorney disagreement

If you name two or more attorneys on the power of attorney document, there will be instances in which they won’t agree on a decision. For example, if your power of attorney was to decide the best treatment for you, and one power holder desired a particular type of treatment plan and the other did not. If the power of attorney owners can’t agree, they will be forced to seek legal guidance.

It may stop being valid

If you are not reviewing your power of attorney regularly, it may no longer be valid. For example, the person you designated initially as an agent might no longer have legal authority, or they may be unavailable to act on your behalf.

You should choose a person you trust to act as your attorney, such as:

> a family member
> spouse
> long-time friend

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How to Get Power of Attorney in Ontario?

1. Fill-in-the-blank power of attorney forms:

These forms are usually free or low-cost, but some users may not find the type of specificity of questions appropriate to their particular life situation. These forms must comply with Ontario law.

To create your own power of attorney, you can either:

• Download and complete this free kit, or
• Order a print copy of the free kit online from Publications Ontario by phone 416-326-5300 or toll free: 1-800-668-9938.

2. Online POA platforms:

Many powers of attorney law firms provide premium power of attorney platforms that allow power owners to quickly and easily access them from the convenience of your mobile device. This might be preferable when compared to purchasing power of attorney pamphlet or having power of attorney forms filled in by hand, then notarized.

These online services are excellent for individuals looking to access personalized and affordable documents. Personalized POA documents may be created on websites like Epilogue, which are a convenient and inexpensive alternative.

The Epilogue’s versatile platform queries you on all the crucial questions, so you can be confident that your document reflects your intentions. They also include thorough instructions to guarantee that your document is legally-binding in Ontario.

Epilogue also offers legal wills in Ontario [INSERT: Link to Epilogue Wills Review].

3. Talk to a lawyer:

If you have complex wishes or require legal advice, talk to a lawyer.

A lawyer can prepare a POA form with you and can help make your document more user-friendly and guide you through any words that might confuse you as a general non-legal professional. However, customized POA’s are expensive for lawyers.

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What to Consider When Choosing an Attorney

• Trust Level (Personal, Family Friend, or Business Associate):  Choosing the right power of attorney agent is vital. Think about how much you trust this person and if they will make decisions that are in your best interest. You should be confident of their everyday judgment.

• Availability: Choose power holders that are easily contactable and available on short notice. You may need them to make power of attorney decisions at a moment’s notice.

• Honesty (Financial and Personal): Your power holder will handle your money, power of attorney changes, and other personal affairs. If this power agent does not have honesty in everyday life or financial management ability, you should consider a different power holder.

• Experience:  Your power of attorney documents are legally binding, and power holders can be held accountable for any power of attorney abuse. Experienced power agents may better understand of how to avoid power of attorney misuse or mistakes.

• Reputation: A power holder with a good reputation in the community is likely someone you want managing your affairs, whereas power holders with tarnished reputations should be avoided.

• Reliability: The power of attorney owner will need to be reliable, dependable, and able to make power of attorney transitional decisions at a moment’s notice.

• Willingness: Your power agent needs to be willing to act in the power of attorney capacity. Documented power of attorney refusal can have legal implications for your power holder.

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What to Consider Before You Prepare a Power of Attorney Document

• Understand the different types of power of attorney and decide what type will suit your needs.
• Decide when a power of attorney should take effect.
• Find an attorney you can trust to manage your money or property the way you want.
• Be sure that your attorney can understand and obey their duties under the law.
• Choose whether you want to give your attorney authority over some or all of your financial matters and what those duties will cover.
• Consult with an attorney to make sure the document is valid.
• Decide whether you want your account statements to be sent to you directly or if someone else should check on things for you.
• Review the guidelines for what is permissible under your provincial or territorial law before using a power of attorney kit that you purchased.
• When more than one attorney is appointed, consider appointing a third person to help with decision-making if the attorneys cannot agree.
• Consider appointing a substitute in case this attorney is unable to continue on your behalf.
• Find out how you can cancel or change a power of attorney, as well as what might happen if your mental capacity decreases or the person acting on your behalf is no longer able to do so.

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What to Consider after Preparing a Power of Attorney Document

• You need to review your power of attorney regularly to reflect how you want to manage your money and property.
• You may make changes to your power of attorney, cancel it, change the agent you have designated as power of attorney or designate more than one at any time as long as you are mentally competent. It is essential that you inform your financial institution of any changes you make immediately.
• Review your financial records regularly.
• Even if your attorney is handling all the details for you, it’s in your best interest to ask questions and get answers from them.
• Signing a new power of attorney may cancel the previous one you had signed.
• If you will be moving to another province, territory, or country, it is vital that you get legal advice on the document to make sure it will be recognized. You may need a new power of attorney for certain assets.

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What Ends a Power Of Attorney?

Any of the following can cause a Power of Attorney to end:

• If your attorney dies, becomes mentally incapable of performing the role, or resigns,
• A court appoints a guardian to manage your property or guardianship over you.
• A new power of attorney is signed.
• You die.

If you no longer want the person you appointed as POA to act on your behalf, all you have to do is revoke their power of attorney and choose someone else. Revoking a Power of Attorney has the exact legal requirements it took to create one.

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How to Activate Power of Attorney in Ontario?

• 1. You should first verify that your legal power of attorney document is valid. If it was prepared by a lawyer, law society, or notary public, it is valid. Suppose your document was prepared by anyone else. In that case, you should contact the Law Society of Ontario to find out if the person who prepared your legal power of attorney has been authorized to do so and what kind(s) of powers they were given on behalf of you.

• 2. Determine whether a Living Will or Health Care Representation form is in place before making any decisions regarding healthcare.

• 3. You need to assess the assets in the estate and protect them. You’ll want to check past financial transactions because this will help you ensure no one has stolen anything or taken out mortgages on house property without informing you, etc.

• 4. Keep good records of your activity, particularly concerning financial matters. Remember that you could be liable for actions such as neglecting to insure a house as an attorney. You may have to answer to people like the public trustee, executor of the person’s estate, or the grantor if they ever become mentally capable again.

You need to keep proper written financial records. If the grantor is mentally capable but wishes for you to manage their finances due to illness, make a scheme where you control the money without completely stripping them of access. This could be an account with money that the grantor can access for some spending.

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Bottomline: Power of Attorney in Ontario

There are many reasons why you may need to obtain a power of attorney for Ontario. Whether you are looking for someone trustworthy to take care of your property or need assistance making medical decisions, having a Power Of Attorney Ontario in place will provide the support that you need. 

We hope this article has given you some clarity on the process and what might be required beforehand to make sure everything goes smoothly. Don’t wait any longer to have peace of mind knowing that there’s one less thing for you to worry about when it comes time for legal matters!

If you have any questions about obtaining a power of attorney or if it’s needed for your particular situation, let’s have them in the comments.

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