UNDERSTANDING POWERS OF ATTORNEY IN ONTARIO

A power of attorney is a legal document that entitles an individual to make decisions on behalf of another person. In Ontario, there are two types of powers of attorney: a power of attorney for property and a power of attorney for personal care. Typically, an individual will appoint a power of attorney that will trigger in the event that they become mentally or physically incapable of handling their own affairs. In Ontario, powers of attorney are governed by the Substitute Decisions Act. When an individual appoints a power of attorney, they must be mentally capable and acting of their own volition. If there is evidence that an individual was under duress or that they were mentally incapable when the power of attorney was appointed, the courts may invalidate the power of attorney. In the event that no power of attorney is appointed, spouses and family members will not automatically be entitled to make any financial decisions or certain healthcare decisions for the mentally incapable individual. They must apply to the Office of the Public Guardian and Trustee or the Ontario Superior Court of Justice to become a court-appointed guardian.

POWER OF ATTORNEY FOR PROPERTY

A power of attorney for property can either be a general or continuing power of attorney. A general power of attorney for property will enable the agent to act for the principal only while the principal is mentally capable and will terminate upon the principal becoming mentally incapable. [1] A continuing power of attorney for the property will only trigger in the event that the principal becomes mentally incapable.[2] The document that authorizes the power of attorney will specify when the powers trigger, it will set out what the agent can and cannot do, and it will detail if the power of attorney is entitled to remuneration. Examples of decisions the agent may be authorized to make include investments, management of debt, and buying and selling property. To be a power of attorney for property, the agent must be mentally capable, and the agent must be at least 18 years of age at the time the power of attorney for property is triggered.[3]

POWER OF ATTORNEY FOR PERSONAL CARE

A power of attorney for personal care will only take effect upon the principal becoming incapable of making personal care decisions. The power of attorney for personal care will set out the specific powers the agent is authorized to make regarding healthcare, it will specify restrictions to medical care the principal does not authorize, and it will detail if the power of attorney is entitled to remuneration. Examples of common restrictions include the principal not wanting to be kept alive by life support, refusing blood transfusions, or certain invasive surgeries. To be a power of attorney for personal care, the agent must be mentally capable, and the agent must be at least 16 years of age at the time the power of attorney for personal care is triggered.[4]

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1. Government of Canada: What Every Older Canadian Should Know About Powers of Attorney.
2. Government of Canada: What Every Older Canadian Should Know About Powers of Attorney.
3. Government of Ontario: Making a Power of Attorney.
4. Government of Ontario: Making a Power of Attorney.

If you are looking to set up a power of attorney,  contact us today to set up an initial consultation. Our real estate law team has the experience and knowledge to draft a detailed power of attorney that reflects your true intentions and protects your interests.

Disclaimer: The information contained in this article is not to be construed as legal advice. The content is drafted and published only for the purpose of providing the public with general information regarding various real estate and business law topics. For legal advice, please contact us.

About the Author:

Shahriar Jahanshahi is the founder and principal lawyer at Jahanshahi Law Firm with a practice focus on representing business star-ups and investors in the province of Ontario. For further information about Shahriar Jahanshahi, click here.