A power of attorney for property is a legal document in which a person (the "grantor") authorizes another person (the "attorney") to manage their property. Under the Ontario Substitute Decisions Act, 1992, a grantor may create a continuing power of attorney which authorizes an attorney to manage the grantorâ€™s property even when the grantor becomes incapacitated. In order to be valid, a continuing power of attorney must describe itself as a continuing power of attorney and must express the intention that the authority may be exercised during the grantor's incapacity to manage property. In the absence of such a provision creating the â€œcontinuingâ€ power of attorney, the power of attorney would be void in the event the grantor becomes incapable of managing their financial affairs.
In a continuing power of attorney for property, the grantor may appoint one or more attorneys and may also appoint one or more alternate attorneys, in the event the attorney is unable or unwilling to act. If more than one attorney is appointed, the power of attorney should clarify how decisions are to be made.
The attorney is a fiduciary - they are under a legal duty to act solely in the best interests of the grantor. The attorney is required to account to the grantor and required to act with reasonable care, must not act in conflict with the interest of the grantor and must not make secret profits.
In the absence of a continuing power of attorney for property, where a person becomes incapable of managing their property, a person, typically a close relative, would need to apply to the court to obtain an order authorizing them to manage the person's property. The benefits of a continuing power of attorney for property are:
- The grantor is able to select who will act as their attorney, as well as substitute attorneys
- The grantor can impose restrictions on the powers of the attorney, such as only permitting the attorney to deal with certain property or directing how the attorney must deal with certain property
- The grantor can determine when the power of attorney is effective, such as only when they become incapable
- The continuing power of attorney or property will avoid the time and expense involved in obtaining a court order
A person can only make a valid continuing power of attorney for property if he or she:
- knows what kind of property he or she has and its approximate value;
- is aware of obligations owed to his or her dependants;
- knows that the attorney will be able to do on the personâ€™s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
- knows that the attorney must account for his or her dealings with the personâ€™s property;
- knows that he or she may, if capable, revoke the continuing power of attorney;
- appreciates that unless the attorney manages the property prudently its value may decline; and
- appreciates the possibility that the attorney could misuse the authority given to him or her.
A person may revoke a continuing power of attorney at any time, so long as he or she is capable of giving one.
A continuing power of attorney for property must be executed in the presence of two witnesses, each of who must sign the document. The witnesses cannot be the attorney or their spouse, the grantor's spouse or child.
An attorney may resign at any time. However, if the attorney has acted under the power of attorney, the resignation is not effective unless a copy is delivered to the grantor, any other attorneys and their substitute attorney, if any. If the grantor is incapable of managing their property and no substitute attorney was appointed or the substitute attorney is unable or unwilling to act, the grantor must also deliver a copy of the resignation to the grantors spouse and any relatives known to the attorney who reside in Ontario.
A continuing power of attorney is an important estate planning component. It ensures your property can be managed, with little interruption, in the event you become incapable of doing so. This limits the burden placed on loved ones during what are often already challenging times.