Powers of Attorney
How Powers of Attorney work
A Power of Attorney is a legal document in which you give someone you trust (called your “attorney”) the right to make decisions for you if something happens and you are no longer able to look after matters on your own.
There are two types of Power of Attorney:
- Power of Attorney for Personal Care – the person you name can make decisions about your health care, housing and other aspects of your personal life (such as meals and clothing) if you become mentally incapable of making these decisions.
- Power of Attorney for Property – the person you name can make decisions about your financial affairs (including paying your bills, collecting money owed to you, maintaining or selling your house, or managing your investments).
You don’t have to create a power of attorney. But if something happens to you and you don’t have one, other arrangements will have to be made. A family member may have the right to make certain personal care decisions, and can apply to become the guardian of your property. Alternatively, someone else — like a close friend — could apply to the court to be authorized to act for you.
If no suitable person is available, the government may have to step in, through the Office of the Public Guardian and Trustee.
Before you begin
To sign a power of attorney you must be considered mentally capable.
To be considered mentally capable of giving a power of attorney for personal care, it must be clear that you understand the need to choose someone with genuine concern for your welfare, and that there may be a need for that person to make personal care decisions for you.
To be considered mentally capable of giving a power of attorney for property, it must be clear that:
- you know about your assets (what you own, what they’re worth)
- you are aware of your obligations to your dependants, and
- you understand the authority and power you are giving to the person holding Power of Attorney.
Find out more about mental incapacity.
Choosing your attorneys
Your good judgment is key to choosing a trustworthy person for this important responsibility.
The person you choose as your power of attorney for personal care must be at least 16 years old. For a power of attorney for property, the person must be at least 18 years old.
Anyone given power of attorney must be considered mentally capable when they are appointed.
Choosing your attorney for personal care
The person you decide to appoint as your attorney for personal care should be someone you trust to make decisions about your housing, food, health, safety, hygiene and clothing. This could be a family member or a close friend. Talk to the person and make sure that he or she is willing to take on this responsibility if needed.
Certain people are not allowed to be your attorney. Do not name any of the following people if they are paid (by you or someone else) to provide services to you, unless that person is also a family member:
- your landlord
- any person who provides care for you in the place where you live
- your social worker, counsellor, teacher
- your doctor, nurse, therapist, or other health care provider
- your homemaker or attendant
Important legal note: unless your power of attorney says otherwise:
- An attorney for personal care is only allowed to make medical or long-term care decisions if a medical professional or evaluator finds you mentally incapable of making the specific decision.
- For all other types of personal care decisions, the attorney can step in if they believe you are incapable — no assessment is required.
Choosing your attorney for property
Important: Be very careful signing a power of attorney for property, because unless you specify otherwise, the person you name can start making decisions immediately. You may want to include a statement in your Power of Attorney that says the attorney can only make decisions if you become mentally incapable.
If you choose to appoint this kind of attorney, make sure the person you choose understands your wishes and agrees to this important responsibility, which includes keeping detailed records of all transactions involving your money and assets.
One option is to use a trust company to act as your attorney. The trust company charges a fee but will be professional and impartial.
Creating your power of attorney
You can create a power of attorney yourself, using the free kit provided by the Ontario government.
You can download the kit, or get a print copy mailed to you by calling:
- ServiceOntario – toll free at 1-800-267-8097, or 416-326-1234 in the Greater Toronto Area
- The Office of the Public Guardian and Trustee – toll-free at 1-800-366-0335, at 416-314-2800 in Toronto, TTY: 416-314-2687.
To use the kit, read it carefully and follow the instructions.
Another option is to have a lawyer write your power of attorney. Consider seeing a lawyer if your personal or business affairs are complicated.
Note that each power of attorney must be signed by you and two eligible witnesses. Some people are not allowed to be witnesses, including your spouse and your children.
Always store legal documents in a safe place. Make sure that your attorney, your bank and anyone else who needs to know about these documents has a copy or knows where to get one. The government does not keep a registry of powers of attorney.
You may want to include an advance directive as part of your power of attorney for personal care.
An advance directive is a document that tells others what you want to happen if you need medical care and are unable to consent or refuse treatment. For example, some people write an advance directive that says they do not want to be kept alive on life support if they have no hope of recovery.
An advance directive helps your substitute decision-maker make difficult choices because they know they are following your wishes in that situation. The directive doesn’t need to be written in any specific way and you don’t need to name anyone to act on your behalf.
Under Ontario law, if you express wishes about your future care while you are mentally capable, these instructions will be binding on your attorney or other substitute decision-maker, unless your wishes are impossible to follow at the time the attorney is asked to make the medical or care decision.
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