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Property: Power of Attorney for Property

The Substitute Decisions Act sets out the legislative framework for granting continuing powers of attorney for property and guidelines for the persons acting as attorneys for property.

What is the appropriate thing to do about aging and decisions about property?

An individual may become unable to make decisions about his/her property and finances either through a serious illness or accident. All adults in Ontario are encouraged to make a continuing Power of Attorney for Property, appointing someone who can make certain financial decisions if required. The Power of Attorney provides a safeguard against decisions being made by others who do not know the person well.

How is a Power of Attorney put in place?

There is no single formula for choosing the substitute decision-maker. It must be done with due consideration for the needs of the individual and who can best ensure the individual’s wishes are respected if he/she cannot make decisions about finances and property. There are also some legal requirements that limit who can become a substitute decision-maker.

The process of giving authority to someone else for finance and property decisions is fairly straightforward:

  1. List the person’s assets and where they are located.
  2. Review with the person, what is important to him/her (beliefs, values, preferences and wishes).
  3. Identify the details of what the person wants a substitute decision-maker to do in the event that he/she can no longer make decisions.
  4. Identify the substitute decision-maker(s).
  5. Create the Power of Attorney.

The Continuing Power of Attorney for Property is signed and dated by the person appointing the attorney. Two witnesses must watch the person do this and then must co-sign the document in the presence of that person and in the presence of each other. The resulting legal document is known as a Power of Attorney for Property.

Should a lawyer be used to set up a Power of Attorney?

Since the Power of Attorney is a legal document and the appointment of substitute decision-maker(s) is a very significant event, it is recommended that a lawyer be consulted in all cases. The lawyer can provide help with final wording to ensure it is done correctly and that the person’s wishes are fully protected.

What if the older adult cannot name the substitute decision-maker?

Where the person is not capable of making a POA for property, either the PGT becomes the statutory guardian and is later replaced by a family member or there is a court application to appoint a guardian of property.

What can the substitute decision-maker for property do?

A Continuing Power of Attorney for Property allows the substitute decision-maker(s) to make decisions concerning the person’s assets including banking, signing cheques, buying or selling real estate and buying consumer goods.

The appointed attorney can do almost anything with the person’s property that the person him/herself could do except make a Will and change beneficiary designations on life insurance policies, RRSPs and RRIFs.

The document may define limits on the attorney’s power over certain property and transactions.

Who can be an attorney for property?

An Attorney named for property must be:

  1. At least 18 years of age.
  2. Mentally capable of fulfilling the attorney responsibilities.

When does the Power of Attorney for Property take effect?

The Continuing Power of Attorney for Property comes into effect when the person signs the Power of Attorney document or at such other time as the person indicates on the document.

Can more than one Substitute Decision-Maker be named?

Yes. If the person names more than one Attorney for Personal Care then they must also specify how the parties are to make decisions about personal care. There are three options available when there is more than one attorney.

  1. Joint Decisions: substitute decision makers must make any decisions together or jointly. No one attorney can act alone.
  2. Several Decisions: any one of the substitute decision-makers may make a decision on his/her own.
  3. Joint and Several Decisions: substitute decision-makers can act alone or together depending on circumstances such as who is most readily available.

Where can I find more information on Power of Attorney for Property?

Sourced from GUIDE TO PERSONAL CARE AND PROPERTY For Older Adults with a Developmental Disability, The Ontario Partnership on Aging and Developmental Disabilities, 2008 http://www.opadd.on.ca