Powers of Attorney - Frequently Asked Questions

How is a power of attorney for personal care or property properly executed?

A valid power of attorney must name the person you have chosen to act on your behalf,  must be signed and dated by yourself, and must be signed and dated by two witnesses who saw you signing the document. The two witnesses cannot include:

  • Your spouse, partner, child, or some one you treat as your child;
  • The person you are naming as your attorney or their spouse or partner;
  • Anyone under 18 years of age; or
  • Anyone who is incapable of making their own property or personal care decisions.

Power of Attorney for Personal Care

Who can I name as my attorney?

For a power of attorney for personal care, you can name almost anyone as your attorney, including a family member or a personal friend.  However, it is extremely important that you choose someone you trust.

 

Who cannot be my attorney for personal care?

You cannot name someone as your attorney if they are paid to give you health care or residential, social, training or support services, unless the person is also your spouse, partner or relative. As well, those under the age of 16 and those who are mentally incapable themselves cannot be named as your attorney.

 

When does a power of attorney for personal care take effect?

A power of attorney for personal care only takes effect if you become mentally incapable of making your own personal care decisions.  In other words, the attorney cannot make personal care decisions for you until you have been found to be mentally incapable.

For treatment decisions, the health practitioner proposing the treatment must decide if you are capable of making the required decision. 

For decisions about admission to a long-term care home or personal assistance services in a long-term care home, an “evaluator” must determine whether you are capable of making the required decision.. Evaluators are nurses, doctors, occupational therapists, physiotherapists, psychologists, some social workers, speech language therapists, audiologists or anyone else prescribed by regulation.

If the decision is about shelter, clothing, hygiene or safety, it will be up to your attorney to decide whether you are mentally incapable of making the required decision unless you say otherwise in your power of attorney for personal care.  Therefore, if you want a different person to make this decision, you can name someone else in your power of attorney to confirm that you are mentally incapable.  The person does not have to be a health professional or anyone with any specific training.  It could be a specific person (your Aunt Martha) or a class of persons (your family physician).

If you state in your power of attorney for personal care that you want your mental incapacity confirmed but do not specify by who, it will be confirmed by a “capacity assessor”.  A capacity assessor is someone who is specially trained and approved to determine mental capacity.

 

Can I dispute a finding of incapacity?

If you are found to be incapable of making a decision about your capacity respecting health treatment  admission to a long-term care home or personal assistance services in a long-term care home, but you disagree with that finding, you can apply to the Consent and Capacity Board to review the finding of incapacity.

If the finding of incapacity is not in one of these three areas, there is no review process set out in the law.

 

When does my power of attorney for personal care end?

Your power of attorney for personal care ends when:

  • You die;
  • Your attorney dies, becomes incapable, or resigns (however, this can be prevented if you name more than one attorney or if you name a substitute attorney);
  • A court appoints a guardian of the person for you;
  • You sign a new power of attorney for personal care while you are still mentally capable; or
  • You revoke the power of attorney while you are still mentally capable.

 

Power of Attorney for Property

Who can I name as my attorney?

The only legal requirement when choosing an attorney for property is that he or she is 18 years of age or older.  However, when choosing your attorney, you should pay careful consideration to many factors, including whether the person you choose is trustworthy and whether they are good at handling money.

 

When does a continuing power of attorney for property take effect?

A continuing power of attorney for property takes effect immediately upon being signed and witnessed, unless otherwise stated in the document. However, if you want it to take effect only after you have become mentally incapable of managing your finances, you must make this clear in the document.  It is up to the individual making the power of attorney whether they want their attorney to be able to help them now or only after becoming mentally incapable.

In order give a valid continuing power of attorney for property, you must be at least 18 years old and mentally capable. Mental capacity for the purpose of giving a continuing power of attorney for property means you must:

  • Know what you are giving your attorney the authority to do;
  • Know what property you have and its approximate value;
  • Know that your attorney is required to account for the decisions they make about your property;
  • Understand that if your attorney does not manage your property well, its value may decrease;
  • Understand that there is always a chance that your attorney could misuse their authority; and
  • Know that as long as you are mentally capable, you can revoke the power of attorney.

 

When does my continuing power of attorney for property end?

Your continuing power of attorney ends when:

  • Your attorney dies, becomes mentally incapable, or resigns (however, this can be prevented if you name more than one attorney or if you name a substitute attorney);
  • A court appoints a guardian of the property for you;
  • You sign a new continuing power of attorney for property while you are still mentally capable;
  • You revoke the power of attorney while you are still mentally capable; or
  • You die.

 

What is a general power of attorney for property?

The Power of Attorney Act states that a general power of attorney for property is a legal document that lets your attorney manage your finances and property only while you are mentally capable. For example, your attorney can act for you in financial and bank-related dealings, by signing cheques, and buying or selling real estate and consumer goods.

This type of power of attorney is usually used in business or for short-term temporary reasons (e.g., if you are going on an extended vacation). If you become mentally incapable of managing your property or finances, the general power of attorney for property ends, and your attorney can no longer act on your behalf.