Harnessing the Authority of Attorney in Ontario

Every day of our lives, as individuals, we are faced with the task of making choices and decisions. Some of these decisions may be trivial, such as selecting a dinner option, while others carry a much greater weight, determining where and how we allocate our finances.

But have you ever considered what would happen if one day you were unable to make decisions on your own? What if an unforeseen accident or illness robbed you of the ability that many take for granted?

There are countless individuals who, due to catastrophic accidents, debilitating illnesses, or the natural decline that comes with aging, find themselves grappling with impairments that hinder their decision-making capabilities. In such situations, they must rely on others to make choices on their behalf.

By establishing a power of attorney, you retain the authority to designate precisely who will be responsible for making crucial decisions concerning your property, finances, and healthcare.

Power of Attorney in Ontario: A Comprehensive Explanation

Before delving into the process of activating power of attorney in Ontario, it is essential to have a clear understanding of what this legal instrument entails.

A power of attorney (POA) is a legally binding document that empowers a trusted individual, someone close to you, with the ability to make decisions concerning your financial matters and healthcare. Despite the term "attorney," the person chosen does not have to be a lawyer or hold any formal legal qualifications.

Though many assume that a power of attorney is only relevant for seniors, the reality is that anyone can face unexpected circumstances at any given moment. As a result, it is of paramount importance to establish a power of attorney (as well as a will!) regardless of age.

A power of attorney can grant either general authority or be limited to specific actions. These actions may encompass various tasks such as managing bills, engaging in asset investments, overseeing property sales, or making healthcare decisions. You, as the principal, will delineate the extent of these powers in the document itself, providing a pre-determined framework for the chosen attorney.

Person on a hospital bed

The Different Types of Power of Attorney in Ontario

Ontario recognizes two distinct types of power of attorney: power of attorney for personal care and power of attorney for property.

Power of Attorney for Personal Care

The power of attorney for personal care takes charge of decisions pertaining to your overall well-being, encompassing aspects like healthcare choices, nutrition, clothing, and housing arrangements. Essentially, this individual is entrusted with any decision related to your personal care. Additionally, they are responsible for conveying any advanced directives outlined in your will or power of attorney documents, including end-of-life support measures.

Typically, the role of the personal care attorney is assumed by a spouse, relative, or close friend who possesses sound judgement and familiarity with your wishes. Without an established attorney for personal care, some decisions may fall to your family, but not all.

Beige stone 2 story house

Power of Attorney for Property

The power of attorney for property exercises decision-making authority over your financial matters and assets. This encompasses tasks such as debt collection, bill payments, property management and sales, and investment management.

If a power of attorney for property is not designated, even your immediate family, including your spouse, cannot automatically assume the responsibility of decision-making. In fact, they may need to seek court appointment as your court-appointed guardian.

It is worth noting that Ontario also recognizes a non-continuing power of attorney for property, which is valid for a limited period. Such arrangements may be beneficial if you require someone to manage your financial affairs during overseas travel, for instance. However, the non-continuing power of attorney is relatively uncommon, and in most cases, a continuing power of attorney will provide the necessary coverage when required.

It is crucial to bear in mind that as soon as you appoint an individual as your power of attorney for property, they gain the authority to make decisions on your behalf immediately, unless otherwise specified. Therefore, it may be prudent to include a provision stating that your designated attorney can only exercise decision-making power in the event of your mental incapacity.

The Importance of Establishing a Power of Attorney

Having a power of attorney in place is vital as it allows you to retain substantial control over your financial affairs and medical decisions, even if you become unable to make these choices independently.

Although commonly associated with older individuals, wills and power of attorney documents are crucial at any stage of life.

In the unfortunate event that you become incapacitated for any reason, such as a medical emergency or an accident, a power of attorney (POA) will protect your interests. Ideally, you may never have to utilize a POA, but life frequently deviates from best-case scenarios.

The absence of a power of attorney document leaves numerous uncertainties regarding decisions related to your personal care and property.

What Occurs When You Lack a Power of Attorney for Personal Care?

If you suddenly become incapable and do not possess a POA for personal care, your family members will be responsible for making decisions concerning your medical treatment, personal support, assistive services, and potential admission into long-term care. However, priority will be given to certain individuals within the family structure. In the absence of a spouse or partner, your children above the age of 16 will assume decision-making responsibilities. Should you not have a spouse, children, or dependents, the duty will fall upon your parents or siblings.

A family member can apply to Ontario's Consent and Capacity Board to be appointed as your representative, granting them prioritized decision-making authority over other family members.

If no family member or appointed representative exists, the government will ultimately make decisions through the Office of the Public Guardian and Trustee.

What Transpires When You Lack a Power of Attorney for Property?

Regrettably, the situation becomes more complex without a power of attorney for property. Many assume that immediate family members possess the authority to make decisions regarding their property and financial matters.

However, family members do not automatically possess management rights in the wake of physical or mental incapacity.

Legal authorization is necessary for financial decision-making. Accordingly, if you lack a POA for property and are no longer capable of decision-making, someone must apply to the court for the permission to act as your representative. Failure to do so may result in the court or the Office of the Public Guardian and Trustee appointing a guardian on your behalf.

There are four specific circumstances in which a guardian for property may be appointed:

  • You are temporarily incapacitated in a hospital setting.
  • You provide consent for the appointment of a guardian.
  • A court order mandates the appointment of a guardian without your consent, typically due to your refusal of a mental assessment or disagreement regarding a guardian's appointment.
  • A guardian may be appointed if you are in a psychiatric hospital.

By having a power of attorney in place, your wishes can be honored even if you are unable to communicate them effectively. For example, if you do not desire to be placed on life support following a severe accident, the proper individuals and documents can ensure that your wish is respected. Without a POA, your spouse or representative may remain oblivious to your preferences and act in their best interest, potentially prolonging your life through life support.

A power of attorney document alleviates the burden for your loved ones, sparing them from the anguish of deciphering your desires or making decisions within a highly emotional context. The document assumes the responsibility of decision-making on their behalf.

Do You Require a Lawyer to Establish a Power of Attorney in Ontario?

No, the involvement of a lawyer is not mandatory for creating a power of attorney in Ontario. However, it is advisable to consult one to ensure that the documents encompass your desired parameters comprehensively.

To be legally valid in Ontario, your documentation must adhere to the following criteria:

The document must be a physical copy, printed on paper, and not stored digitally or online.

At the time of drafting, you must be of sound mind and above the age of majority in Ontario.

The document must be signed in the presence of two valid witnesses who will attest to witnessing your signature.

The signatures must be executed in wet ink and located at the conclusion of the document. Digital signatures are not accepted.

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