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Power of Attorney

Estate Planning, Power of Attorney documents

What is a Power of Attorney?

A Power of Attorney is a legal document that appoints a specific person to “step into your shoes” and act on your behalf, if you are unable. A General Power of Attorney can only be used while you are mentally capable. A Continuing Power of Attorney means that it can be used even if you are mentally incapacitated. Power of Attorney can be for general or unlimited use, or specific for a one-time special purpose, such as selling a piece of property. Power of Attorney can become effective either immediately or upon a contingent event such as your doctor declaring you mentally incapable.


Do I need two Power of Attorney?

We recommend that you have a Power of Attorney for Property (assets) and a separate Power of Attorney for Personal Care. Sometimes, the person who is best suited to be your Power of Attorney for Property is not the same person who is best suited to make your medical decisions. Further, upon the event a POA is required by a bank the entire document would be revealed and now the bank is privy to your personal end of life decisions.


Can a Power of Attorney be used after death?

No. A Power of Attorney is no longer valid after you die. When someone dies, the Last Will and Testament is the document that takes over.


Is a Power of Attorney the same thing as an Executor?

A: No. A Power of Attorney is someone you appoint to act on your behalf while you are alive but are unavailable or incapacitated. An Executor is someone who is in charge of your Last Will and Testament and estate after you die.


I think someone is abusing a Power of Attorney. What do I do?

Power of Attorney have a fiduciary duty to act in the best interest of the person who granted the power. Power of Attorney for Property are required to keep accounting and can be held accountable for improper spending, gifting, or transfers. If you believe someone is abusing a Power of Attorney you can initiate an investigation with the Office of Public Guardian and Trustee.


What do I do if my parent is mentally incapable and there is no Power of Attorney?

If there is no Power of Attorney in place, under the Ontario Substitute Decisions Act, the Office of Public Guardian and Trustee becomes the Statutory Power of Attorney. Families can work with the OPGT and apply for the Power of Attorney to be transferred.


Can you appoint an Executor who does not live here?

Yes, you can but this decision needs to be carefully thought out and reviewed with an estates lawyer. If you name an executor who does not live here in Ontario, you must specifically write in your will that the appointment is without bond. Otherwise, a nonresident would be required to post security (bond) which can be worth up to three times the value of the estate. This is an expensive and time-consuming process. Even with this language to waive the bond requirement, it still may not be binding to a judge if for any reason the judge is not satisfied. We therefore always recommend that if you do name a nonresident as an executor, it would be wise to name an alternative person or professional who lives in Ontario. This would allow the foreign executor the option of renouncing, or stepping down, upon the event that a bond issue arises.