Power of Attorney

A Power of Attorney is a legal document which you use to give someone else the legal authority to make decisions for you.

The person whom you choose as your Attorney does not have the power to prevent you from making decisions for yourself as long as you are mentally able to do so. Furthermore, the person whom you empower to act in your place is regarded by the law as a trustee, i.e., as someone who must act in your best interest and who, as long as you are mentally capable, must act with your full knowledge and consent.

You don't need a lawyer to draft, prepare, or complete a Power of Attorney, but there are formal legal requirements as to the format of the document and as to how it is signed, including the number of witnesses. There are also restrictions on who can witness a Power of Attorney, and there may be risks involved in granting a Power of Attorney – risks which can best be understood by consulting with your lawyer about your specific circumstances.

Powers of Attorney are often prepared at the same time as a Will, but they serve a very different purpose. The Will only becomes effective after your death, whereas Powers of Attorney are only in force until your death. Powers of Attorney can be used without a Will but they usually best serve your interests when used in conjunction with your Will. The person whom you select as your Attorney may or may not be the same person whom you choose as your executor.

Once you have granted a Power of Attorney, if you want to revoke it or change it, the law sets out how you can do so and your lawyer can advise you about these processes.

There are two types of Power of Attorney which are:

1. Power of Attorney for Personal Care.
                     and
2. Power of Attorney for Property.

A Power of Attorney for Personal Care allows your chosen Attorney to make decisions about your medical care, but only when you are unable to decide for yourself. This type of Power of Attorney is often used to ensure that you will decide who will speak for you if you are ever seriously injured or if you suffer from some disease and are unable to communicate your wishes regarding medical treatment yourself.

A Power of Attorney for Property was formerly called a General Power of Attorney and is now called a “Continuing Power of Attorney for Property” provided that it is set up to enable your chosen attorney to be able to continue to act for you even after you have become mentally incompetent. This did not used to be possible but it can be done now if and only if your chosen attorney takes certain steps to notify the Public Guardian and Trustee of your status as an incompetent. If you do not have a Continuing Power of Attorney for Property, then after you become incompetent the Public Guardian and Trustee would be your legal representative concerning all of your property, not because you have appointed him, but by operation of Ontario statute law.

Unless you provide for limitations or restrictions in the Power of Attorney for Property (or in the Continuing Power of Attorney for Property), the person or people you name as your Attorney or as your Attorneys will be able to do almost anything you can do with your property. There are some things which the law forbids an Attorney to do (such as testify in Court or take a driving test for the person who gave them Power of Attorney), but an Attorney would be able to sell your house and belongings, take out loans in your name, enter into contracts for you etc.

The more restrictions and limitations you build in to your Power of Attorney document, the more control you have over what authority you are delegating; but the less your Attorney will be able to do for you and the harder it will be for your Attorney to do what you want him or her to do. These matters are rarely straight forward and you should be prepared to discuss the implications which pertain to your situation with your lawyer.

The Ministry of the Attorney General Office of the Public Guardian and Trustee has put together a PDF document which answers many of the most common questions about powers of attorney. This document is useful but it cannot and does not replace your lawyer and his or her ability to interact with you in constructing the set of documents best suited to your individual needs!