estate law, will, wills, estates, poa

Power Of Attorney for Property
Frequently Asked Questions

What does “capable of giving a continuing power of attorney” mean?

To be capable of giving a continuing power of attorney, you must know what kind of assets you have and their approximate values; that your attorney can do for you anything that you can do if it is a general power or the particular action if it is a limited power; that your attorney must account for what he or she does for you; that you can revoke the power of attorney while you are capable of doing so; that your asset values may decline if your attorney does not act prudently and that an attorney may misuse his or her authority.

Can I revoke a continuing power of attorney?

Yes, if you have not become incapable of doing so.

Can I make a power of attorney after I become incapable?

No, you cannot.

What are my attorney’s responsibilities?

  • To act in your best interests.
  • To Consult with you
  • To consult with your supportive friends and family members who are in regular personal contact with you.
  • To act consistently with the decisions of your attorney for personal care if those decisions don’t impair your finances.
  • To use your assets, first, for your support and care; second, for the support of your dependants; and third, for your other obligations.
  • To make loans to relatives or gifts to relatives and charities based on your previous practices and intentions (you can refer to this in your power of attorney).
  • To obtain a copy of your will and information about your assets and liabilities (others who have this information have to provide it to your attorney).
  • To refrain from disposing of any of your items that you specifically give away through your will or though some other testamentary disposition (such as a designation) unless it is necessary to do so; and in that case the person to whom you give the item in your will is to receive equivalent value from your estate.
  • To keep accounts, and, when requested, give an accounting, which will include lists of the following: your assets as of the date of your attorney’s first transaction; assets acquired and disposed of and the date and particulars of each transaction; all money receipts and disbursements and the date and particulars of each transaction; investments bought and sold and the date and particulars of each transaction; your liabilities as of the date of the attorney’s first transaction; liabilities incurred and paid and the date and particulars of each transaction; of all compensation taken by the attorney.
  • To keep a copy of the continuing power of attorney and of any court orders relating to the attorney’s authority.
  • To refrain from disclosing any information in the accounts except to you and to your attorney for personal care.
  • To keep these records until he or she ceases acting for you and until the attorney receives a release from someone authorized to give it, or until another person acquires authority to manage your property and your attorney gives the records to that person, or if you die, until the attorney gives the records to your executor, or until there is a court order.

When will my power of attorney take effect?

The power of attorney takes effect when you sign it, unless it says that it takes effect later. For instance, you can state that it will take effect if you become incapable, and explain how that incapacity will be determined and by whom. If the power of attorney states that it takes effect on your incapacity, but is silent on how incapacity is determined or who determines it, the power of attorney takes effect when you are assessed or certified as incapable (see “Certification”).

When will my power of attorney end?

The power of attorney will end if you revoke it, if the attorney dies (unless you name more than one or you name a substitute), if the court appoints a guardian of your property, or if you pass away.

A later power of attorney revokes an earlier one, unless the new one has a clause stating that there are to be multiple powers of attorney. Include the “multiple powers” clause if you are drafting a power of attorney and you do not want to revoke an earlier one.

How much will my attorney be paid?

In your power of attorney, you can state how much your attorney will be paid. If you do not, the fees will be prescribed by regulation: 3% on capital and income receipts and on capital and income disbursements, and 3/5ths of 1% on the annual average value of the assets for management.

How do I sign my power of attorney?

You must sign it in the presence of two witnesses who are at least eighteen-years-old. Neither witness can be your child, spouse, partner, attorney, or attorney’s spouse.

How does an attorney resign?

Your attorney can resign, but if he or she has taken any action for you under the power of attorney, the resignation does not take effect until he or she delivers a copy of the resignation to you, to any other attorneys named in the power of attorney and to the person named as a substitute for the attorney who is resigning.

When the attorney is resigning, if he or she believes that you are incapable, and if you have not named a substitute for the attorney who is resigning, the attorney must also deliver the resignation to your spouse (or partner), and to your relatives (known to the attorney) who live in Ontario. The resigning attorney also notifies persons with whom the attorney is dealing on your behalf.

What happens if I don’t have a power of attorney and I become incapable?

If you become incapable, someone can apply to the court to be appointed the statutory guardian of your property. If you become a patient of a psychiatric facility or someone asks that you be assessed, you could be certified as incapable and the Public Guardian and Trustee (an office of the Ontario government) would become the statutory guardian of your property.

If you do not give a power of attorney and if you are certified incapable, a family member can be appointed your guardian.

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