A Power of Attorney is a document that gives someone (your “Attorney”) the authority to make decisions on your behalf if you are absent or incapable of making decisions. It is a legal document that appoints your Attorney as your agent who can step into your shoes and act with the same authority as you have in looking after your finances, estate or health, etc.
You may give your attorney general powers to act with very few restrictions. Or, you may give your attorney special powers to act for a specific purpose only. Your appointed attorney cannot be a witness in your power of attorney document, and there has to be an independent witness.
Once appointed, your attorney must always act in your best interests.
Moreover, your attorney must have full mental capacity and understand the role, responsibilities, and consequences of being your attorney under the power of attorney.
In Ontario, there are two types of Power of Attorney:
● Power of Attorney for Personal Care – under this document your attorney can make decisions about your health care and related matters if you become mentally incapable of making these decisions.
● Power of Attorney for Property – under this document your attorney can make decisions about your financial affairs, such as the sale of your house, paying outstanding loans and bills, managing your investments, etc.
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, you must understand the need to choose someone with genuine concern for your welfare, and therefore you must choose someone you trust. You must also appreciate the fact 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 have full and up to date knowledge of your assets (such as their location and worth, etc.); you are aware of your obligations to your dependents, and you understand the authority and power you are giving to your attorney in respect of your property and assets.
In case of power of attorney for personal care, your attorney must be at least 16 years old, whereas, in case of power of attorney for property, the attorney must be at least 18 years old.
If you need to have a notarized copy of your Power of Attorney, you should contact and visit the office of a Notary Public who will see the original and provide a certified copy. Many lawyers in Ontario also provide Mobile Notary service or House Call Notary service. A Commissioner of Oaths cannot notarize a copy of a Power of Attorney.
FAQs
What is a Power of Attorney?
A Power of Attorney is a document that gives someone (your “Attorney”) the authority to make decisions on your behalf if you are absent or incapable of making decisions. It is a legal document that appoints your Attorney as your agent who can step into your shoes and act with the same authority as you have in looking after your finances, estate or health, etc.
How do I create the Power of Attorney?
You can write your own Power of Attorney yourself through different online forms and kits which are available free of charge sometimes. However, writing a Power of Attorney is a very serious matter affecting your estate, property, and health. It is strongly recommended you hire a lawyer to write your power of attorney, especially if your personal or business affairs are complicated.
Can I create a Power of Attorney online?
Yes, you can create your power of attorney through some online portals and free websites. However, writing a Power of Attorney is a very serious matter affecting your estate, property, and health. It is strongly recommended you hire a lawyer to write your power of attorney, especially if your personal or business affairs are complicated.
Does my Power of Attorney need to be notarized?
There is no legal requirement that a power of attorney must be notarized. However, when a power of attorney is notarized by a notary public, additional authenticity is attached to the document. This prevents fraud and other kinds of tampering with the document.
What is an Advance Directive and how it is different from a Power of Attorney?
An Advance Directive is not a legal document in itself. Sometimes a person may have special wishes about his or her medical treatment which they want to incorporate in writing. These wishes can be made part of a Power of Attorney of Personal Care. An Advance Directive just mentions your medical treatment and care wishes in a written form so that your appointed Attorney is aware of them if and when required.
Is it legally required to register the Power of Attorney with the government?
No. Registration of Power of Attorney is not required in Ontario. There is no such mechanism. However, you should keep your signed Power of Attorney document in a safe place and it is always a good idea to provide a copy to your Attorney. Some lawyers will also keep a copy in their records.
If I write my Power of Attorney in Ontario, would it be acceptable outside Ontario?
Every province or territory in Canada has its own laws regarding the enforceability of legal documents from other provinces or territories. You should check with the legal representative in the relevant province or territory about the applicability of a Power of Attorney executed in Ontario. The same applies to other countries throughout the world. You should always check with a legal expert in the respective country about the applicability of foreign legal documents such as a Power of Attorney.
Do I have to hire a lawyer to write my Powers of Attorney?
No. You are not legally required to have your Power of Attorney written by a lawyer. However, it is a very important document that will likely affect your property, assets, health, and other persona care decisions in the future if you are absent or incapable of making those decisions. Therefore it is always advisable to hire a lawyer to write your Power of Attorney. Lawyers as such are trained and skilled to write a customized Power of Attorney according to the circumstances and wishes of a person. Moreover, there are certain legal requirements that must be fulfilled in order to make a Power of Attorney legally enforceable, such as the legal capacity of the person writing his or her Power of Attorney, as well as the number and capacity of the witnesses, etc.
What are the main legal requirements to make a Power of Attorney legally enforceable?
In order to be legally valid and enforceable, a Power of Attorney must be physically witnessed by two individuals. Your spouse, children, and your appointed attorney are not allowed to act as witnesses. In case of power of attorney for personal care, your attorney must be at least 16 years old, whereas, in case of power of attorney for property, the attorney must be at least 18 years old.