Powers of Attorney in Ontario: Property vs. Personal Care:What You Need to Know

Most people know they should have a will. Fewer people know that a will does nothing to protect you while you are alive, and that the documents that do, powers of attorney, are just as important and just as commonly missing.

Here is what you need to know about powers of attorney in Ontario.

What Is a Power of Attorney?

A power of attorney (POA) is a legal document that authorizes someone you trust, your attorney, in the legal sense, to make decisions on your behalf. In Ontario, there are two distinct types, and they serve completely different purposes.

Power of Attorney for Property

A continuing power of attorney for property authorizes your attorney to manage your financial affairs, your bank accounts, investments, real estate, and other assets, if you become unable to do so yourself. The word “continuing” is important: it means the document continues to be effective even if you become mentally incapable, which is precisely when you need it most.

Without a continuing power of attorney for property, no one, not your spouse, not your children, not your closest family member, has the legal authority to manage your financial affairs if you become incapacitated. They would need to apply to the Ontario Superior Court of Justice to be appointed your guardian of property. That process is slow, expensive, and stressful, and it is entirely avoidable.

Power of Attorney for Personal Care

A power of attorney for personal care authorizes your attorney to make decisions about your health and personal care if you become mentally incapable, decisions about medical treatment, living arrangements, diet, clothing, and hygiene. This document only comes into effect when you are mentally incapable of making those decisions yourself.

Without a power of attorney for personal care, healthcare providers will look to your family members for substitute decision-making authority, in an order of priority set out by Ontario’s Health Care Consent Act. This process does not always result in the person you would have chosen making decisions on your behalf, and it gives you no ability to specify your wishes or exclude specific people from the process.

Why Both Documents Matter

These two documents do completely different jobs and neither substitutes for the other. A power of attorney for property does not give your attorney authority over your personal care. A power of attorney for personal care does not give anyone authority over your finances.

Many people have one without the other, usually the property POA, because they were told to get it when they purchased real estate. Having only the property POA leaves your personal care decisions unprotected. Having only the personal care POA leaves your finances unprotected.

You need both.

Choosing Your Attorney

Your attorney does not need to be a lawyer, it is simply the legal term for the person you are authorizing to act on your behalf. Choosing the right person is one of the most important decisions in the process.

Your attorney for property should be someone who is financially responsible, organized, and trustworthy. They will have significant authority over your assets and must act in your best interest, keep records, and avoid conflicts of interest. You can appoint multiple attorneys to act jointly or jointly and severally, meaning either can act alone, and you should always name a substitute in case your first choice is unable or unwilling to act.

Your attorney for personal care should be someone who knows you well, understands your values, and will advocate for your wishes even under pressure from medical professionals or other family members. This is often the most emotionally demanding role, choose someone who can handle it.

What Happens Without These Documents

Without a continuing power of attorney for property, your family must apply to court for a guardianship order before they can manage your finances. The process can take months and cost thousands of dollars in legal fees, money that comes out of your estate while your finances may be in limbo.

Without a power of attorney for personal care, medical decisions will be made by whoever falls highest in the statutory hierarchy of substitute decision-makers, which may not be the person you would have chosen. More importantly, there is no document recording your wishes, what treatment you do or do not want, under what circumstances you would consent to certain interventions, and what matters most to you in terms of quality of life.

These Documents Do Not Last Forever

Powers of attorney can be revoked at any time while you have mental capacity. They should be reviewed when your circumstances change, a marriage, separation, divorce, the death of your named attorney, or a significant change in your financial situation are all events that should prompt a review.

Documents prepared many years ago using older forms may also not comply with current requirements under Ontario’s Substitute Decisions Act, a reason to have them reviewed periodically even if nothing obvious has changed.

Getting These Documents in Place

The process of preparing powers of attorney is straightforward when done properly. A lawyer will take you through your options, help you choose appropriate attorneys, discuss any specific wishes or restrictions you want included, and prepare documents that are properly executed and legally valid.

The cost is modest. The protection they provide is significant. And the peace of mind, for you and for your family, is worth considerably more than either.

This article is for informational purposes only and does not constitute legal advice. Contact Yombo Grossman Law to discuss your estate planning needs.