Powers of Attorney
(This is an edited version of our Client Guide that provides general information and is made available to our clients to assist them to understanding powers of attorney in Ontario. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem for which you feel a power of attorney may be appropriate, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation before providing that advice, rather than relying on the general information provided in this Guide.)
Powers of attorney have been used for centuries to permit a person to nominate, in writing, another trusted friend or acquaintance to carry out a function on behalf of the person. In 1994, the Ontario government proclaimed into force a new statute, the Substitute Decisions Act, which greatly expanded the scope and functionality of powers of attorney. They can now play a significant role in personal planning for maintaining property and personal dignity during a period of disability, much the same as a will provides protection for an orderly distribution of property upon death.
The person who authorizes another to act in his or her place is called the grantor of the power of attorney.
The person who is authorized in the power of attorney to carry out certain acts on behalf of the grantor is called the attorney. In the United States and other jurisdictions, the word attorney is often used to indicate a lawyer but that is not the context in which the word attorney is used in Ontario in relation to powers of attorney. An attorney under a power of attorney in Ontario does not have to be, and is usually not, a lawyer. The law looks at the attorney as a fiduciary or trusted person and will require that the attorney at all times act in the best interests of the grantor.
The choice of an attorney is an important one since he or she will be authorized to carry out some act in the name of the grantor that will affect either the property or personal care of the grantor. The first criterion is that the grantor must have sufficient trust in the attorney to properly carry out the act or acts on behalf of the grantor. Without this basic level of trust and confidence in the attorney, a power of attorney will fail as an effective planning tool.
An attorney should also have sufficient experience in the area to carry out the delegated task. For instance, it would generally be a poor choice to appoint an attorney for property to manage investments where the attorney has had no experience in making such decisions.
Accessibility is also an important factor. An attorney who resides elsewhere than the place where the grantor lives or where the work under the power of attorney has to be carried out will generally be a poor choice if trusted others who are resident nearby are available.
A power of attorney can be general or specific to a single task, such as executing a property deed while the grantor is temporarily away at the time of closing. Most powers of attorney for property to be used as part of disability planning are of a general type. A grantor can also impose restrictions and limitations on any power given to the attorney which may be appropriate for the circumstances.
The Substitute Decisions Act also provides for assessors, who are professionals trained in the determination of whether or not a person has capacity to manage his or her affairs or has the capacity to give a power of attorney. Although it is not usually necessary to do so, such a formal determination by an assessor is sometimes required before a lawyer can take instructions from a client to prepare a power of attorney in cases where the lawyer has concerns about a lack of mental capacity. Such an assessment can usually prevent a later dispute about the mental capacity of the grantor of the power of attorney at the time he or she gave instructions and signed the power of attorney. Assuming that the proposed person is a qualified assessor under the regulations to the Substitute Decisions Act, a grantor can name an assessor in the power of attorney whom the grantor trusts to make the assessment. Some grantors may wish to name a family doctor for this purpose, for instance. However, it will be ineffective if the proposed person has not obtained his or her qualification to act as an assessor. In addition to undergoing approved training and being approved by the Ministry, the assessor must be a member of::
There are essentially two types of powers of attorney in Ontario; one for property and one for personal care. They are designed for different purposes.
This type of power of attorney is designed to deal with financial and property matters. In its general form, it is used to ensure that regular banking matters can easily continue with credit card and mortgage payments being made if the grantor becomes disabled and unable to attend to such matters directly. Even where the grantor is mentally competent, the challenge of getting to the bank or post office during a period of limited mobility can be burdensome to many people. There are many circumstances where an attorney can spare the grantor expense and delay. While many friends or family members may be prepared to undertake these tasks on behalf of another, without a power of attorney, they may be met with technicalities and legal requirements which prevent them from carrying out their good deeds. A power of attorney can effectively authorize them to do so with a minimum of inconvenience and delay.
Powers of attorney can also provide for common situations where written evidence of authority to act on behalf of another is required. For instance, authorizations to the Canada Customs and Revenue Authority (formerly Revenue Canada) for access to the grantors tax records, authorizations to consent to a spousal transfer of the matrimonial home and authorizations to act as a litigation guardian are often specifically included in the power of attorney (A litigation guardian is required if the grantor is ever a party to a lawsuit at a time when the grantor does not have mental competence to instruct a lawyer).
A power of attorney can specify when it is to become effective. At first glance, it might appear that the mental incapacity of the grantor would be an effective trigger. However, there is then the often difficult process of defining how that is to be established. This will inject uncertainty and delay, avoidance of which were among the reasons a power of attorney was prepared in the first place. For that reason, most powers of attorney for property provide that they are effective immediately and the grantor relies on the integrity of the attorney to not abuse the powers given to the attorney.
A power of attorney for property is a continuing power of attorney (sometimes called a durable power of attorney) if it contains a written statement of intention (made at a time when the grantor of the power of attorney had sufficient mental competence to make a power of attorney) that it can be used during a subsequent period of mental incapacity. In fact, since this is now the principal use of powers of attorney for most people, virtually all powers of attorney for property contain such a statement.
Of course, if a grantors trust in the attorney is misplaced, there is an opportunity for abuse of the power of attorney. A power of attorney can, and a general power of attorney generally does, authorize the attorney to do anything that the grantor could do if able, except make a will. An unscrupulous attorney can breach his or her fiduciary duty and steal the grantors money or property for his or her own benefit. Sometimes such dishonesty does not come to light until the grantor dies and the executor discovers the defalcation while administering the estate.
Even where there is no intention to harm the grantors property, poor investment decisions by the attorney can reduce the value of the grantors property. In other cases, particularly where the grantor has been married more than once or has children with different partners, legitimate differences of opinion may result in favouring one group of family members over another in a manner which the grantor would not have intended.
All of these situations reinforce the importance of choosing an attorney carefully.
Being an attorney also brings with it certain duties and obligations. Click here to see our Client Guide on Duties of an Attorney under a Power of Attorney. An attorney has to keep specified records and can be required to account to the court for his or her administration of the grantors property.
This is an entirely new form of power of attorney in Ontario, introduced in the Substitute Decisions Act in 1994. It allows a grantor to authorize an attorney to make personal care decisions on behalf of the grantor. This includes the authority to give or refuse to give consent for operations and medical procedures.
However, it has many more uses. In fact, social, educational, hygiene and similar factors have to be addressed by the attorney on behalf of a grantor who is incapable of making such decisions. Many difficult situations facing caregivers in the past where there were disputes among relatives can now be avoided; the grantor has decided that it is the attorney whom he or she wishes to make those decisions.
The power of attorney for personal care can also contain an advance directive specifying the grantors wishes in certain medical situations. Frequently, a family and caregivers had to anguish over whether or not to continue life support. Particularly where there were conflicting views among family members, caregivers were reluctant to take any step which did not have the effect of preserving life. Now a grantor can provide binding instructions to the caregivers. Some have described this type of advance direction as a living will.
The variety of options here is large. One may specifically authorize the attorney to make the decision in accordance with instructions given orally earlier. Or, there are simple clauses that provide for no heroic measures and avoidance of pain and suffering. Others may prefer to leave detailed descriptions of the types of treatment they would accept and the circumstances under which they should or should not be administered. Whatever decision you make, you should discuss it with your doctor to ensure that he or she understands your wishes and will be able to carry them out if necessary.
An excellent resource is a book entitled Let Me Decide by Dr. William Molloy and Virginia Mepham, RN, published by Penguin Books.
The power of attorney for personal care has much less scope for abuse. If a person is competent and can express his or her wishes for treatment or personal care, the caregivers must honour those wishes. If a person is incompetent but can express his or her wishes, the attorney must take those into account when giving instructions to the caregivers.
Continuing powers of attorney for property and powers of attorney for personal care are important tools in effective personal planning. We recommend them to all clients, regardless of age, as part of an overall personal protection plan for any disability that may arise. As you consider the distribution of your property by will, it is wise to consider disability protection through the effective use of powers of attorney
Any questions? If you have any questions about powers of attorney, please contact us at:
W. Bruce Drake Hooey · Remus Telephone: (416) 362-2051 Facsimile: (416) 362-3646 Suite 400, 1 University Avenue Toronto, Ontario M5J 2P1 eMail: firstname.lastname@example.org Website: www.hooeyremus.com
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