Understanding Power of Attorney for Property in Ontario
January 24, 2023
In Ontario, a Continuing Power of Attorney for Property allows you to appoint someone to manage your finances on your behalf.
According to Community Legal Education Ontario, a Power of Attorney is a legal document that gives someone else the power to act on your behalf. This person is called your “attorney”. In Canada the word “attorney” usually does not mean lawyer, as it does in the United States.
Unless you limit your attorney’s authority, they can do almost anything with your property that you could do. However, your attorney cannot make or change your will, or give a new Power of Attorney on your behalf.
Your attorney can act for you in financial dealings, such as banking, signing cheques, buying or selling real estate, and buying consumer goods.
Why you might want to have a Continuing Power of Attorney for Property
If you don’t have a Continuing Power of Attorney for Property in place, and you become mentally incapable of managing your own property, one of the following things could happen:
Friends or relatives could step in to manage some of your financial affairs without having to be your attorney.
The Office of the Public Guardian and Trustee could be appointed to manage your property. A close relative could apply to Public Guardian and Trustee to formally take over the management of your property.
Someone could go to court and ask to be appointed to formally manage your property.
With a Continuing Power of Attorney for Property, you can choose a person you trust to protect your property and your interests if the need arises. Without one, you don’t have control over who might end up managing your financial affairs.
You can set up your Continuing Power of Attorney for Property so that it comes into effect only if you become mentally incapable of managing your own finances (otherwise it comes into effect the moment it’s signed and witnessed).
How mental incapacity is defined
A person might be considered mentally incapable of managing their own property if they are
unable to understand how to manage their finances
unable to appreciate the consequences of mismanagement
vulnerable to exploitation by others
Who determines if someone is incapable?
In Ontario, if you are concerned that a person you know is mentally incapable of managing their own property, you may request a capacity assessment. By law, a person is assumed to be capable until determined otherwise. That determination can be made by a judge or a capacity assessor.
The person can refuse a capacity assessment unless it is court-ordered.
Capacity assessors charge a fee. In most cases, the person who requested the assessment must pay the assessor. Financial assistance is available for people who cannot afford to pay an assessor.
Different from a Power of Attorney for Personal Care
A Continuing Power of Attorney for Property does not apply to personal care decisions such as providing consent for health services or facility admissions. For an introduction to the Power of Attorney for Personal Care, refer to our article on the topic.
Help managing sticky situations
We’ve helped many families in the Ottawa area manage sticky situations where there’s a concern over an aging relative’s ability to manage their own financial affairs and/or make decisions about their own personal care. Call, text, or email us, particularly if you’re considering a move to a retirement home or long-term care home.