What is a Power of Attorney?
As opposed to a last will and testament, (which allows you to nominate someone to look after your estate AFTER you've died), a Power of Attorney allows you to appoint someone to make important decisions on your bahalf DURING your lifetime.
The laws of the Province of Ontario recognize TWO types of powers of attorney:
  1. Power of Attorney for PROPERTY
  2. Power of Attorney for PERSONAL CARE
A Power of Attorney becomes invalid the moment the "donor" - the person who gave the power of attorney - dies, and the will, if there is one, comes into effect immediately at death.
Power of Attorney for PROPERTY
This kind of Power of Attorney allows you to appoint a person of your choice to make decisions about PROPERTY and manage your FINANCES on your behalf. This may include doing things such as signing documents for you, paying your bills, or selling your home.
This form of power of attorney, provided it is stated to be "enduring", will allow the person you appoint to manage your financial affairs even if you become mentally incapable.
The person you appoint is called your "attorney for property", and you may name more than one attorney if you wish.
The power of attorney will be effective immediately unless you decide that you want it to come into effect at a later date or under specific circumstances. Your power of attoney can specify what authority your appointed attorney will have over your financial affairs, and you may place conditions or limitations on the authority your attorney will have.
For example, you may give your attorney the power to do anything with your property that you could do yourself if you were mentally capable except make a will. On the other hand, you could limit your attorney's authority to dealing with a single property only.
Either way, your property will still belong to you and must be managed by your attorney in your best interests and in accordance with the law.
Power of Attorney for PERSONAL CARE
This kind of Power of Attorney allows you to give a person of your choice the authority to make decisions about your PERSONAL CARE should you become mentally - or physically - incapable of doing so for yourself. Decisions about personal care can involve things such as where you live, what you eat, and the kind of medical treatment you receive.
The person you appoint is called your "attorney for personal care". You may appoint more than one attorney if you wish.
You may give your attorney special instructions about the particular kind of care you want - or don't want - in certain situations.
Do I need a Power of Attorney?
In more serious circumstances, such as mental illness which renders you even temporarily incapable of making decisions, it is reassuring to know that someone you know and trust will be handling your affairs, instead of a court-appointed person or a government official.
It is a good idea for spouses to give power of attorney for both property AND personal care, naming an adult child or children as alternates in case the other spouse is also incapable of acting.
But giving someone you can trust your Power of Attorney, with specific instructions as to when it is to be used, is often a good idea in any case. For example, if you are travelling and become stranded or ill while abroad, a power of attorney for property will ensure that your affairs are properly handled in your absence. In such a case, your attorney for property could act on your instructions given by telephone, fax or e-mail until you are able to return.
Do I need a lawyer to make a Power of Attorney?
While there are do-it-yourself forms available to allow you to appoint an attorney for both property and personal care, there are special rules involved which dictate whether a power of attorney is validly signed, and whether it survives the "donor's" mental incapacity. A lawyer will ensure that these rules are properly followed and that your power of attorney is in fact a valid one.
Furthermore, giving a power of attorney is a very serious matter. You are giving the person you appoint significant power over your property - or person, and there is always a risk that your attorney could misuse this power. Although you are not required to consult a lawyer in order to make a legally binding power of attorney, it is a good idea to do so. Consulting with other expert advisors is also a good idea, providing they are impartial and concerned only with your best interests.
Contact Us
If you have any questions concerning what you have read here, or about the cost of a power of attorney, please feel free to contact us.

Profile | Contacting Us | Fee Information | Buying a House | Making a Will |
Powers of Attorney | Trade-marks | Marriage in Ontario | Main

Malcolm A.F. Stockton
Barrister, Solicitor & Trade-mark Agent
4786 Queen Street, Box 868
Niagara Falls ON
Canada L2E 6V6
stockton@iaw.com