In Ontario, there are two different kinds of powers of attorney: an attorney for property and an attorney for personal care. 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 Personal Care
A power of attorney for personal care empowers an individual or individuals to make decisions about your health care, shelter, safety, hygiene, clothing and nutrition when you cannot make those decisions for yourself. You do not have to appoint the same individual to act as attorney for power and personal care. Unlike an unconditional Power of Attorney for Property, a Power of Attorney for Personal Care is only effective when the grantor is incapable of making decisions. A Power of Attorney for Personal Care can be revoked by the grantor, provided that the grantor has the capacity to do so.
The Attorney for Personal Care has a duty when making decisions on behalf of the grantor to act consistent with the grantor’s best interests and to consider any express wishes made by the grantor prior to incapacity. The Attorney shall also, among other duties set out in the legislation, encourage the incapable person to participate, to the best of his or her abilities, seek to foster regular personal contact between the incapable person and supportive family members and friends, and consult, from time to time, with supportive family members and friends as well as the individuals from whom the incapable person receives personal care.
Power of Attorney for Property
A power of attorney for property empowers an individual or individuals to make financial decisions in the event of your incapacity or, depending on the terms of the power of attorney, while you are mentally capable. Our lawyers will review with you the benefits of appointing a power of attorney for property to manage your finances — and the effects of such an appointment — and recommend a course of action.
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.
If you do not to appoint a power of attorney and you become unable to make decisions, the Office of the Public Guardian and Trustee has the authority to make decisions for you. Someone may apply to the court to be your guardian for personal care and property. The benefit of granting power of attorney is the ability to choose an individual, or individuals, whom you trust to manage your affairs and your health and well-being.
Prudent estate planning involves choosing the right people to make decisions on your behalf. An attorney is an individual to whom you entrust your financial and personal well-being when you can no longer make those decisions.