Power of Attorneys (POA) in Ontario
Basic facts: A husband is in a coma after being involved in a car accident. He has a personal bank account in his name only. His spouse attends the bank to withdraw money and is denied by the bank teller. The doctors are also requesting a special medical procedure but cannot do so until signed consent is obtained – the wife is willing to sign the consent, but doctors refuse to perform the treatment until a valid Power of Attorney for Personal Care is provided or a Court Order giving her authority is obtained.
This scenario is a true story – the spouse had to hire a lawyer to obtain a court order appointing her as the “attorney” on behalf of her husband to handle her husband’s financial assets and to allow her to make decisions on her husband’s medical treatment. The legal cost incurred to obtain a court order – not sure, but it was significant!
The solution: Accidents can happen at any time so you have to be prepared - make a Power of Attorney!
What is a Power of Attorney?
A Power of Attorney (“POA”) is a legal document which allows you (the “Grantor”) to appoint one or more parties whom you trust, to act in your best interest and make decisions on your behalf (the “Attorney”) when you are unable to make that decision. In this context, the term “Attorney” does not necessarily refer to a lawyer.
There are 3 types of POAs in the Province of Ontario:
1. Non-Continuing Power of Attorney for Property
- The Attorney’s power does not continue after your incapacitation and is usually made for a limited specified time, for example, if you need assistance taking care of your financial affairs as you are travelling.
2. Continuing Power of Attorney for Property
- This is most common and allows the Attorney to continue to act after your incapacitation
3. Power of Attorney for Personal Care
- The Attorney can make decisions about your health after your incapacitation, such as your health care, housing and meals.
A POA must be signed by the Donor or Grantor in the presence of two witnesses to be valid and enforceable in the Province of Ontario.
The witnesses cannot be any of the following individuals: The Grantor’s spouse, partner, child or someone they treat as a child;
The Attorney, or the Attorney’s spouse or partner; Anyone under the age of 18 and anyone who has a Guardian of Property/Person.
You must also ensure that the POA defines the powers as clearly as possible – most common acts are payment of bills, investment of certain assets, sale of property or making healthcare decisions.
Who should be your Attorney?
Typically your attorney is a spouse, relative, or close friend who is familiar with your wishes and has good judgment. Some professionals can be engaged as your Attorney, but they will require compensation for time and services rendered.
Aside from choosing the Attorney who will have your best interests in mind, you should also consider other factors such as where the Attorney resides, age and financial situation, particularly if the attorney’s financial status is unstable.
A POA may never be required, but if somehow or someday you are incapacitated, you know that your finances, health and personal decisions can be made by your attorney.
Contact Realty Care Law LLP today to discuss your options and create a Power of Attorney for Property and a Power of Attorney for Personal Care.
Author:
John Y.S. Park
Managing Partner