What Is A Power Of Attorney?

In Ontario, a power of attorney or POA, is a legal document that gives someone you trust the authority to make decisions on your behalf and represent you to others.

The authority can be general or be limited to specific acts that the attorney can perform.  Some common acts include the payment of bills, investment of certain assets, sale of property, or making healthcare decisions. This ability is given in advance by you, the "grantor", "donor", or "maker" of the document.

In Ontario, there are two types of power of attorney documents — power of attorney for property and power of attorney for person care. Here are some of the differences between the two types of POA documents:

What Is A Power of Attorney for Personal Care In Ontario?

Your power of attorney for personal care can make decisions regarding your health care, housing, meals, and clothing - essentially anything related to your personal care. This person is the voice of your healthcare decisions if you are unable to communicate yourself.  They are also responsible for communicating life support measures and other advanced directives you have outlined in our will and POA documents.

Typically your power of attorney for personal care is a  spouse, relative, or close friend who is familiar with your wishes and has good judgement.

What Is A Living Will In Ontario?

Legally speaking, there is no such thing as a "living will" in Ontario. However, what people generally refer to as a living will, is a document that outlines your medical wishes for end of life.

In Ontario, your documented medical instructions are legally recognized as an 'advance directive'. This document outlines your treatment and personal care wishes.  However, it is perfectly legal to simply include these instructions as a part of your power of attorney documents.

Ontario law requires that your attorney follow any wishes and instructions you have provided in your power of attorney or advance directive. The only exception is if the instructions are impossible at the time of decision-making.

What Is A Power of Attorney For Property In Ontario?

In Ontario, your continuing power of attorney for property is responsible for making decisions regarding your property and finances, if you are medically incapacitated. This includes paying your bills, managing investments, or even collecting any money owed to you.

Ontario also recognizes non-continuing power of attorney for property. However, this type of POA ends if you become mentally incapable. Typically a non-continuing power of attorney is used for a limited time. For example, if you need assistance taking care of your financial affairs if you're travelling.

In this article, we are referring only to continuing powers of attorney. Willful does not offer non-continuing (or limited) power of attorney documents at this time.

Why Should Ontarians Have A Power Of Attorney?

Your attorney is responsible for making decisions about your property, finances, personal life, and medical care, if in the event of an emergency if you are unable to do so yourself. In many cases, you can also help your attorney by outlining these decisions in advance.

Despite what many people believe, power of attorney is not only for seniors and those considering end-of-life-care. POA documents offer protection in the event of incapacitation, regardless of your age. This includes anything from physical accidents to medical emergencies.

A power of attorney is something you never hope will come into effect, but it can protect your finances, health, and personal decisions if you were to become incapacitated.  A great way to think of your POA as a form of disability insurance, it protects you while you're alive. In contrast, your will would be like a form of life insurance, which takes care of your loved ones after you pass away.

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Do I Need A Lawyer To Make A Legal Power Of Attorney In Ontario?

You do not need a lawyer to draft your power of attorney of attorney documents in Ontario. However, there are some criteria you need to meet in order for it to be legal. In Ontario this includes:

  • The document must be stored as a physical document (It must be printed and cannot be stored online)
  • You must be of sound mind and over the age of majority in your province
  • You must sign your document in the presence of two valid witnesses and they must sign to confirm they have witnessed your signature.
  • The signatures must be in wet ink and at the very end of the document (You cannot digitally sign and witness your estate planning documents at this time).

Does A Power of Attorney Need To Be Notarized In Ontario?

In Ontario, there are no requirements for your power of attorney to be notarized. If you've followed the guidelines for signing and witnessing, you have a legal power of attorney document!

What Are The Duties Of A Power Of Attorney in Ontario?

In Ontario, your power of attorney for property can do anything in relation to property and finances that you could do, if you were competent. This includes things like paying bills, collecting debt, applying for benefits, or selling your assets. The only thing your attorney for property cannot do, is make your will.

A power of attorney for personal care in Ontario can make decisions related to your health care, nutrition, shelter, clothing, hygiene and safety. They are also responsible for communicating your medical wishes, such as pain relief and life support, to doctors and medical professionals.

How Can I Make A Power of Attorney In Ontario?

It's easier than you think to make a power of attorney. There are several ways to get a legal power of attorney in Ontario:

  • Fill-in-the-blank power of attorney forms - These forms are typically a good free or low cost option. They are typically cookie-cutter, which unfortunately may not account for your unique life situation, or allow for much personalization. It's important if using a POA form that your form is in compliance with Ontario law.
  • Online power of attorney platforms - Online platforms like Willful are a convenient and affordable option for anyone looking for personalized POA documents. Willful's dynamic platform asks you all the important questions, so you can be certain your document reflects your wishes. We also include detailed instructions to ensure that your document is legally-binding in Ontario. Willful also offers legal wills in Ontario.
  • Visiting a lawyer - If you have complex wishes or require legal advice, you may want to consider visiting a lawyer. A lawyer can walk you through any complexities to build a document that best meets your personal needs. However, a customized POA from a lawyer can be very expensive.

Other Common Questions About Power Of Attorney in Ontario

Is There A Standard Power of Attorney Form In Ontario? Where Can I Get One?

There is no standard form for power of attorney in Ontario that you are required to use. Regardless how you choose to create your power of attorney documents, they are legal as long as you've met the provincial requirements. There is also no requirement for your POA to be registered.

However, the Ministry of the Attorney General for Ontario provides many resources regarding powers of attorney.

Who Can I Make My Attorney?

Your attorney should be someone who has good judgment and someone you trust.

A person cannot act as attorney for personal care if they (1) provide healthcare to grantor for compensation; or (2) provides residential, social, training or support services to the grantor for compensation unless they are the grantor's spouse/partner/relative

Who Can Witness My Power Of Attorney Documents?

Power of attorney documents need to be signed and witnessed in order to be legally-binding in Ontario. The law requires that two people witness your signature.  The witnesses must be present at the same time, and sign the last page with you together.

In Ontario, following people are not valid witnesses for your power of attorney documents:

  • Anyone under the age of majority in their province or territory
  • A spouse, common-law partner, child or someone you treat as your child
  • Your attorney, or your attorney's spouse or common law partner
  • Anyone who has a "Guardian of Property" appointed for them by a court because they are not able to manage their property due to medical reasons
  • Anyone who has a "Guardian of the Person" appointed for them by a court because mentally they are not able to make personal care decisions
  • Anyone whose property is under your guardianship
  • Anyone who has a child of yours under their guardianship

Every Willful power of attorney comes with full localized instructions on how to ensure you've properly signed and witnessed your documents.

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