Power of Attorney in Ontario: What It Is, How to Sign One Properly, and What Happens If You Don't Have One

Most people think of a power of attorney as something for the elderly. In reality, a car accident, a stroke or a sudden illness can leave anyone unable to manage their own affairs, sometimes for weeks and sometimes for good. When that happens, the question of who is legally allowed to step in matters a great deal. In Ontario, the answer comes mainly from the Substitute Decisions Act, 1992. Here is a plain-language guide to how powers of attorney work.

Two different documents for two different jobs

Ontario law recognizes two main kinds. A continuing power of attorney for property lets the person you choose (called your "attorney", who does not need to be a lawyer) handle your money and property: paying bills, managing bank accounts and investments, dealing with real estate. It is "continuing" because it keeps working if you lose mental capacity. Under section 7 of the Act, the document must either state that it is a continuing power of attorney or express the intention that it can be used while you are incapable. Your attorney can do almost anything with your property that you could do yourself, with one notable exception: they cannot make a will for you.

A power of attorney for personal care covers decisions about your health care, housing, nutrition, clothing, hygiene and safety. Many people sign both documents, and you can name the same person or different people for each. A power of attorney for property that is not "continuing", sometimes used for a single transaction, generally stops working if you lose capacity, which is exactly when most families need it.

Who can make one, and who can be named

The property rules in the Act apply to people who are at least 18, and an attorney for property must also be at least 18. For personal care, the age is 16, for both the person signing and the attorney.

You also need mental capacity to sign. For a continuing power of attorney for property, section 8 says you must know roughly what property you have and what it is worth, be aware of obligations to your dependants, and understand what you are handing over: that the attorney can act for you, must account for what they do, could misuse the authority, and that you can revoke the document while you are capable. For personal care, section 47 sets a simpler test: you must be able to understand whether the person you are naming genuinely cares about your welfare, and appreciate that you may need them to make decisions for you. Importantly, a continuing power of attorney is valid if you were capable of giving it when you signed, even if you were already unable to manage your property at the time.

One restriction is worth knowing. Someone who is paid to provide you with health care, or with residential, social or support services, cannot act as your attorney for personal care unless they are also your spouse, partner or relative. And if you name two or more attorneys, they must act jointly, meaning they all have to agree, unless your document says they can act separately.

Signing it properly: the witness rules

This is where homemade documents most often go wrong. Both types must be signed in the presence of two witnesses, and each witness must sign. Section 10 of the Act lists people who cannot be witnesses: the attorney or the attorney's spouse or partner; your own spouse or partner; your child, or someone you have treated as your child; a person whose property is under guardianship or who has a guardian of the person; and anyone under 18. A document that does not meet these rules is not effective unless a court later declares it to be, which means an application, delay and expense at the worst possible moment.

Since 2021, section 3.1 has allowed powers of attorney to be witnessed by video, provided at least one witness is a lawyer or paralegal licensed by the Law Society of Ontario and the signatures are made at the same time. Signing identical copies in counterpart is also permitted.

No particular form is required, and the Office of the Public Guardian and Trustee publishes a free power of attorney kit. There is no provincial registry, so keep the original somewhere safe and make sure your attorney knows where it is.

When does it take effect?

A continuing power of attorney for property can be used as soon as it is signed, unless it says it starts on a particular date or event. Many people choose to have it start only if they become incapable. If the document says that but does not explain how incapacity is to be confirmed, the Act fills the gap, typically through a formal capacity assessment. A power of attorney for personal care works differently: your attorney can only make a decision for you when you are not able to make that decision yourself.

What your attorney must do

Once you are incapable, an attorney for property is a fiduciary. The Act requires them to act diligently, honestly, with integrity and in good faith, for your benefit, and to consider the effect of their decisions on your personal comfort and well-being. They must keep accounts of what they do with your money. If there are concerns, the court can order the attorney's accounts to be formally reviewed, a process called passing of accounts. The attorney, you, your attorney for personal care, a dependant or the Public Guardian and Trustee can apply, and other people, such as concerned family members, can apply with the court's permission.

What happens if you don't have one

For health care, Ontario's Health Care Consent Act, 1996 sets out a ranked list of people who can consent to treatment for someone who is incapable. After a court-appointed guardian, an attorney for personal care and a representative appointed by the Consent and Capacity Board come your spouse or partner, then your children or parents, then your siblings, then any other relative. So family can often step in without a document. But if relatives of equal rank disagree, or you would rather a close friend decide, only a power of attorney puts that choice in your hands.

For property, there is no equivalent list. Being someone's spouse does not, by itself, give you authority over bank accounts or property in their name alone. Without a continuing power of attorney, the options are a capacity assessment that can lead to the Public Guardian and Trustee becoming the person's statutory guardian of property, or an application to court to appoint a guardian of property. Both take time and cost money, and a guardian other than the Public Guardian and Trustee must manage the property in line with a management plan.

Changing or ending a power of attorney

You can revoke a power of attorney as long as you have the capacity to make a new one. Signing a new continuing power of attorney for property automatically ends the old one, unless you state that you intend to have more than one. A continuing power of attorney also ends when you die. From that point, it is the estate trustee (executor) named in your will, not your attorney, who has authority over your estate.

The practical takeaway

Powers of attorney are inexpensive to put in place and very costly to be without. Choose someone you trust, talk to them about your wishes, check that your witnesses are eligible, and review the documents after major life events such as marriage, separation or the death of a named attorney. If a family member's capacity is already in question, or an attorney's handling of money is causing concern, it is worth getting advice early. Ken Wise & Associates practises in estate, capacity and power of attorney matters.

This article is general information only and is not legal advice. Reading it does not create a solicitor-client relationship. Every situation turns on its own facts — speak with a qualified Ontario lawyer or licensed paralegal about yours.