AREAS OF PRACTICE

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Powers of Attorney

 

Ontario’s Substitute Decisions Act, 1992 sets out the framework governing substitute decision-making in relation to personal care and property. It establishes the framework that allows a person to appoint another, an 'attorney,' to make personal care or property decisions on his or her behalf. A 'power of attorney' is the legal document that authorizes the attorney to act on the donor or grantor’s behalf.

Powers of attorney are important planning tools should you be no longer able, due to either a mental or physical condition, to manage your property or to properly attend to your personal care. Attorneys may be responsible for making critical decisions, sometimes in urgent situations. By enacting a power of attorney while capable, a person can ensure that his or her preference as to who should make such important decisions will be followed. In the absence of a power of attorney document, the process of selecting a substitute-decision maker, often during a critical time, becomes more time-consuming and costly.

Powers of attorney, of which there are two types – one for property and finances and another for personal care – confer significant authority on the appointed decision-maker and should be chosen only after careful consideration. 

A Continuing Power of Attorney authorizes the attorney to do anything in respect of property that the grantor, if capable, could do himself, except make a Will for the grantor. The scope of the attorney’s authority may be restricted, however, by express limitations set out in the power of attorney document. While a Continuing Power of Attorney allows the attorney to manage the grantor’s financial affairs and property, a Power of Attorney for Personal Care pertains to decisions concerning health care, nutrition, hygiene, shelter, safety and clothing. A Power of Attorney for Personal Care may address any one or more of these elements of the grantor’s health or personal care. 

An attorney for property must be at least 18 years of age and capable of making their own decisions with respect to their property or finances. The minimum age requirement for an attorney for personal care is 16 years of age, as long he or she is deemed capable of making his or her own personal care decisions. A further distinction is that a power of attorney for personal care only takes effect upon the grantor’s incapacity, while a continuing power of attorney for property is effective immediately upon signing, unless the document clearly states otherwise (such as upon the grantor’s incapacity).

 

An attorney must act solely in the grantor’s interests and must exercise his or her powers diligently, honestly and in good faith for the grantor’s benefit. An attorney must make decisions in accordance with the grantor’s wishes expressed while capable, or in the grantor’s best interests and according to his or her values and beliefs, where explicit instructions or wishes were not expressed.