What you should know - Powers of Attorney

Are there different types of Powers Of Attorney?
Yes. In Ontario there are three kinds of Power of Attorney:

  • A Continuing Power of Attorney for Property (CPOA) relates to your financial affairs and permits a person of your choosing to act for you. These powers of attorney continue even if you become incapable of managing your own affairs.
  • A non-continuing Power of Attorney for Property relates to your financial affairs but does not persist if you become mentally incapable. These powers of attorney are often used, for example, in situations where you need someone to deal with your financial transactions while you’re away from home for an extended period of time.
  • A Power of Attorney for Personal Care (POAPC) relates to your personal decisions, such as your place of residence and health care.

Can my attorney disclose my financial information to others?
No, your attorney is required to respect your privacy unless:

  • you specifically authorize your attorney to disclose information in your Continuing Power of Attorney; or
  • disclosure of information is required in order for your attorney to carry out their duties

Does my "attorney" need to be a lawyer?
The term “attorney” refers to the person or persons you have chosen to act on your behalf. There is no requirement that the person be a lawyer.

How can I revoke my Continuing Power of Attorney?
To cancel your Continuing Power of Attorney, you must state in writing that you are “revoking” it. There is no special form for this statement, but it is required to be signed and witnessed by two people.

If I don’t have a Power of Attorney or a “living will”, will my affairs be managed by the government?
Not necessarily. If you do not have a power of attorney, a family member may have the right to make your health care decisions and can apply to become your “guardian” of property. Alternatively, a close friend may also apply to the Court to be appointed. The Office of the Public Guardian and Trustee (OPGT), will only step in where no other suitable person is available.

What if I, or someone else, discover that my attorney is mismanaging my assets?
As long as you still have the required mental capacity, you can revoke your power of attorney. It is also appropriate to demand that your attorney provide a full accounting of their dealings with your assets. If there has been theft, it may be appropriate to make a report to the police.

If someone else has evidence suggesting your property is being mismanaged, and you are mentally incapable, they may apply to the court to review the accounts and records your attorney is required to keep.

What is Power of Attorney and why do I need one?
A Power of Attorney is a legal document that gives someone else the right to act on your behalf. Many people believe their families will be able to step in if something happens and they cannot make decisions for themselves. This isn't always true. You can name someone to make financial decisions for you, such as paying your bills, with a continuing power of attorney for property. For personal care and health decisions such as where you live, what you eat or what medical care you will receive if you get sick or injured, you can name someone in a power of attorney for personal care. We can assist you in preparing these important documents and help ensure that you and the things you have worked hard for are taken care of in the event that you become incapacitated.

What level of mental capacity is needed to make a Continuing Power of Attorney?
The mental capacity to make a continuing power of attorney requires that you:

  • understand your obligations to the people who depend on you financially;
  • are aware that your attorney is required to account for the decisions they make about your property;
  • understand that, as long as you continue to be mentally capable, you have the ability to (cancel) your Power of Attorney;
  • understand the potential for the value of your property to decrease if your attorney does not manage it well;
  • know what property you have and its approximate value;
  • are aware that there is always the potential for your attorney to misuse his or her authority;
  • know what you are giving your attorney the authority to do.

Who should I appoint as my attorney for property?
Firstly, you should appoint someone who you think will be willing to take the job. This is a very significant decision and requires a great deal of thought. Your attorney will have full access to your money and other property and you need to be certain you have appointed someone you can trust and someone who has the ability to properly manage your finances.

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