A power of attorney document, sometimes also called a POA, is a legal document through which a person (called the “Grantor”) appoints someone (called the “Attorney”) as an agent to make important decisions. This document will enable the Attorney to make property-related, financial, or health-related decisions on behalf of the Grantor. Common situations where a power of attorney documents is used include absence, illness, or otherwise incapacity of the Principal to make their own decisions. In these or similar situations, the Attorney will step into the shoes of the Principal and make important decisions. In a power of attorney document, an Attorney may be given specific, general, or unlimited powers about a matter affecting finance, property, assets, or health of the Grantor.
Find a lawyer:
In Ontario, although you can write your own power of attorney, however, in order to draft and execute a proper and legally binding power of attorney document, you must consult a lawyer so you are aware of legal requirements for a power of attorney document to be validated. The power of attorney 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 certain mandatory legal requirements that must be fulfilled before a power of attorney document is legally valid in Ontario. For example, your power of attorney document must be witnessed by an independent person. Your appointed Attorney cannot be a witness in your power of attorney document. Moreover, at the time of signing your power of attorney, you must be of a certain age and you must be of sound mind capable of understanding the contents of the power of attorney document. You should also sign the power of attorney document voluntarily out of your own free will, and without any pressure or duress. A lawyer, while executing the power of attorney document in his physical presence, will take care of all these legal considerations and will ensure compliance with these mandatory requirements.
Decide about the type of power of attorney you want to write:
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.
In case of the power of attorney for personal care, your attorney must be at least 16 years old, whereas, in case of the power of attorney for property, the attorney must be at least 18 years old.
Decide who will act as your Attorney:
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.
Know about your assets:
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.
Notarization:
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. Notary public will witness your power of attorney document. In Ontario, most lawyers also act as notary public. It is very likely that the lawyer drafting your power of attorney will also witness and notarize it. Some lawyers or notaries also offer to keep a copy of the power of attorney in their record, usually for an extra fee.
No need for registration:
In Ontario, the registration of power of attorney is not required. 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.
The validity of a power of attorney outside of 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 the local legal expert about the applicability of an Ontario power of attorney document.
The attorney should have access to the power of attorney document:
You should keep your power of attorney document in a safe place. Your attorney named in the power of attorney document should have access to this document. Or at least they should know where the document is placed. In the event the power of attorney document is required to be used by your Attorney to exercise their powers, the document should be handy. This will not only save precious time and money but will also save the Attorney from unnecessary hassle and inconvenience.