As human beings, we make choices and decisions every single day of our lives. Some of these decisions are minor, like what to have for dinner, while others are far more significant, like where and how you spend your money.
But what happens if you are suddenly unable to make decisions for yourself? What if you were in an accident or became ill and lost the ability many take for granted?
Many people, whether through a catastrophic accident, illness, or mental decline with aging, will face impairments that impact their decision-making ability and will need to rely on others to make decisions.
With a power of attorney in place, you get to decide exactly who makes important decisions about your property, finances, and health care.
What Is a Power of Attorney in Ontario?
Before you determine how to invoke power of attorney in Ontario, you need to understand exactly what a power of attorney is.
A power of attorney (POA) is a legal document that gives a trusted person in your life the power to make decisions regarding finances and health care for you. While called an “attorney,” this person does not need to be a lawyer or an attorney.
Typically people consider POA to be of concern to seniors only, but the truth is, anything can happen at any time, so it is important to have a POA (and a will!) in place no matter your age.
A POA can grant general authority or be limited to specific acts. These acts can include things like bill payments, asset investment, the sale of property, or healthcare decisions. These abilities will be spelled out in the document and granted by you, in advance.
Types of Power of Attorney in Ontario
There are two types of power of attorney in Ontario: power of attorney for personal care and power of attorney for property.
A power of attorney for personal care makes decisions about your health care, meals, clothing, and housing. Basically, as the name suggests, any decision related to your personal care. This individual is also responsible for communicating any advanced directives outlined in your will or POA documents, like end-of-life support measures.
Typically, this person is a spouse, relative, or close friend. A person who demonstrates good judgment and is familiar with your wishes. If you do not have an attorney in place for personal care, your family can make some decisions but not all.
The power of attorney for property will make decisions regarding your property and finances. This includes things like collecting debts, paying your bills, maintaining or selling your home, and managing investments.
Without a POA for property in place, your family (spouse included) cannot automatically assume a decision-making role. In fact, your family may need to go to court to become your court-appointed guardian.
Ontario also recognizes non-continuing power of attorney for property. This POA is meant for a limited time. You can put one in place if you need someone to manage your financial affairs while travelling overseas, for example, but it will end should you become mentally incapable. A non-continuing POA is fairly rare, however, so in most instances, your POA for property will be a continuing power of attorney and keep you covered when needed.
It is important to note that as soon as you appoint someone as your power of attorney for property, they can begin making decisions on your behalf immediately unless you state otherwise. So, it might be a good idea to include a statement that says your designated attorney can only make decisions once you become mentally incapable.
Why Should You Have a Power of Attorney?
You should have a power of attorney because it gives you the greatest amount of control over what happens regarding your finances and medical decisions should you no longer be able to decide for yourself.
While many people consider wills and power of attorney necessary for older people, they are important to have in place at any age.
A POA will protect you and your interests should you become incapable for any reason, including medical emergencies and accidents. In the best-case scenario, you never need to know how to invoke a power of attorney, but unfortunately, life is not solely comprised of best-case scenarios.
Not having a power of attorney document in place, leaves your property and personal care decisions with many question marks.
What Happens When You Don’t Have a Power of Attorney for Personal Care?
For personal care, if you suddenly become incapable, and do not have a POA in place, your family can make decisions regarding medical treatment, personal support and assistive services, and whether or not you should be admitted into long-term care. But some members will have to be given priority over others. A spouse or partner is given top priority. If they are not available, the decision-making passes to any children you have over 16 years of age. If you do not have a spouse or a child, then your parent or a sibling would be asked.
A family member can apply to Ontario’s Consent and Capacity Board to be appointed as your representative. This individual would be given decision-making priority over other family members.
If there is no family or appointed representative, as a last resort, the government will make the decisions through the Office of the Public Guardian and Trustee.
What Happens When You Don’t Have a Power of Attorney for Property?
Unfortunately, things become even more complicated if you do not have a power of attorney for property. Many people believe that an immediate family member will have the power to make decisions about your property or financial matters.
Family does not have automatic management rights following a loss in physical or mental capacity.
Legal authority must be in place for financial decisions. This means that if you do not have a POA for property and can no longer make decisions for yourself, someone must apply to the court for permission to be your representative. If that does not happen, a guardian may be appointed by the court or the Office of the Public Guardian and Trustee.
There are four circumstances where a guardian for property may be appointed:
- You are in hospital and temporarily incapable
- You give consent to appoint a guardian
- Guardian is appointed by court order without your consent (you refuse a mental assessment or do not consent to have a guardian)
- Guardian may be appointed if you are in a psychiatric hospital
Having a power of attorney in place means that your wishes can be carried out even when you are no longer able to express them properly. You, for example, may not want to be put on life support after a severe accident. With the right people and documents in place, you can see that this wish is upheld. Without it, your spouse or whoever is acting on your behalf, may be unaware of your wishes or act in their own interests, and keep you on life support.
A power of attorney document ensures that your loved ones are not left with the burden of figuring out what you would want or having to make choices in an already emotionally fraught set of circumstances. The document can make the decisions for them.
Do You Need a Lawyer to Make a Power of Attorney in Ontario?
No, you do not need a lawyer to make a power of attorney in Ontario but it is advisable to use one to ensure that the documents cover you in all the ways you wish.
To be legal in Ontario, your documentation must meet the following requirements:
The document must be a physical document. That means printed on paper and not stored digitally or online
You must be of sound mind and over the age of majority in Ontario at the time of drafting
You must sign the document in the presence of two valid witnesses and they must sign to confirm that they have witnessed your signature
The signatures must be in wet ink and placed at the end of the document. No digital signatures.
Witnesses to the signing of your documents cannot be:
- Your attorney
- Your spouse or partner
- Your attorney’s spouse or partner
- Your child
- A person with whom you have a parent/child relationship
- Anyone under the age of 18
How to Make a Power of Attorney in Ontario?
Fortunately, making a power of attorney in Ontario is relatively easy.
For starters, you must be:
- Mentally capable
- At least 18 years of age to make a POA for property
- At least 16 years of age to make a POA for personal care
You can make the document yourself by downloading and completing a free kit or you can have a lawyer draw it up for you.
Having a lawyer draw up your documents can ensure you have created a proper, legally binding document. It is an especially good idea to have a lawyer handle the document if you have complicated business or personal affairs.
Talk to a lawyer if:
- You have given or are considering giving someone power of attorney over your bank accounts
- You run or own a business
- You have a difficult family situation
- You own property in another province or country
It is worth noting that the Ontario land registration system does not accept powers of attorney that contain personal information. This includes copies of or details from:
- Government identification
- Bank accounts
- Birth certificates
If you are unsure about this rule or concerned about what you have included in your power of attorney, it is best to reach out to a lawyer for support, advice, and clarification.
Knowing when and how to invoke power of attorney in Ontario can help you ensure your wishes are met and that your finances, property, and personal care are accounted for should something happen that renders you unable to make decisions for yourself.
Power of attorney is an important document that can make your wishes clear and put any future decision-making in the hands of a trusted individual.
While you can create this document on your own, it is best to consult with a lawyer to ensure you’ve met all legal requirements and that you are covered in the way you want.
At RBHF Professional Corporation, we are well-practiced and experienced in estate planning and can help you draft powers of attorney, wills, and other important estate documents.
Contact us to learn more about how we can help you or to get started drafting your power of attorney document.