Appointing a Power of Attorney for Property and for Personal Care is an integral part of any estate plan. Unlike a will, Power of Attorney documents are for use when the grantor is still alive; an Attorney loses the authority to act upon the death of the grantor. In Ontario, Powers of Attorney are governed by the Substitutes Decision Act, 1992, S.O. 1992.
Power of Attorney for Property
According to the legislation, a grantor of a Power of Attorney for Property must be at least eighteen (18) years old. The Attorney must also be at least eighteen (18) years old. The document must be executed in the presence of two witnesses, who are also at least eighteen (18) years old and who are not the following:
- The Attorney or the Attorney’s spouse or partner;
- The grantor’s spouse or partner;
- A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child;
- A person whose property is under guardianship or who has a guardian of the person.
An Attorney for Property is, typically, granted the authority to do anything with respect to the grantor’s property that a grantor can do, other than making a will. In discussing the powers that an Attorney for Property has, a common question that arises is whether granting one removes the power of the grantor to deal with his or her own property. Granting a Power of Attorney does not remove the grantor’s rights to deal with his or her own property but, rather, gives the authority to the Attorney to share in that right.
Powers of Attorney for Property can be unconditional, which means that they become effective upon signing (without requiring the incapacity of the grantor to be acted upon), or they can be conditional upon incapacity (requiring the grantor to be incapable before the Attorney can act). Powers of Attorney for Property will often also use the language “Continuing Power of Attorney” meaning that the document continues to be in effect after the grantor becomes incapable.
A grantor can also revoke a Power of Attorney, provided that he or she has the capacity to do so.
The Attorney for Property also has specific duties under the legislation. In particular, the Attorney must exercise his or her functions “diligently, with honesty and integrity, and in good faith, for the incapable person’s benefit.” Among other duties laid out in the legislation, an Attorney for Property must keep accounts of all transactions involving the property, encourage the incapable person to participate to the best of his or her abilities in the Attorney’s decisions, and explain to the incapable person what the Attorney’s powers and duties are.