Your Powers of Attorney: Important Documents You Need in Ontario
Disclaimer: This article on your power of attorney in Ontario is intended for the purposes of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice. It does not purport to be exhaustive.
Updated: December 2023
Life is unpredictable and sometimes things happen that were not part of the plan. That being said, we discussed how estate planning is important and how a will protects those important people in your life.
However, that is not where estate planning starts and ends. There are other documents, for example, a power of attorney, that you will want to have in place.
In this blog post, we’ll go over some of the most important documents you should have besides a will to protect your loved ones. If you would like to learn more about how we help our clients with their estate planning, please visit here or book a call with us here.
What is a Power of Attorney in Ontario?
A power of attorney gives a person (the attorney for property or attorney for personal care), the power to make certain decisions for someone (known as the grantor) who has given them power.
In other words, this person will have the same powers and rights as you when it comes to making important decisions on your behalf if you cannot make those decisions yourself.
What are the different types of power of attorney?
In Ontario, there are two categories of Powers of Attorney:
- Power of Attorney for Personal Care
- Power of Attorney for Property
What is a power of attorney for property?
Let’s start with the power of attorney for property. A power of attorney for property is a legal document that gives someone the authority to handle your property and financial matters, including accessing your bank accounts if you become incapable or unable to make those decisions for yourself.
There are two types of power of attorney: a continuing power of attorney or a non-continuing (general) power of attorney.
The difference between the two is within the name and the length of effectiveness. A continuing power of attorney will handle your financial affairs if you cannot, including if you are mentally incapable.
A non-continuing (general) power of attorney will cover your financial affairs, but not if you become mentally incapable. You may use this if you go away for an extended period and need someone to handle your affairs in Ontario.
What is a power of attorney for personal care?
A power of attorney for personal care is a legal document that gives an individual the power to make decisions on their behalf – specifically health and personal care decisions – if they become unable to do so themselves. This can include decisions about medical treatment, living arrangements, and end-of-life care.
The appointed individual, also known as the attorney for personal care, has the authority to make decisions in the best interests of the person who granted them the power of attorney.
Who should you choose to make decisions about your personal care and finances?
It is important to choose someone who is trustworthy and understands your wishes when creating a power of attorney for personal care. This document ensures that your wishes for medical care and personal needs are carried out, even if you are unable to communicate them yourself. A power of attorney for personal care provides peace of mind knowing that someone you trust will be able to make important decisions on your behalf if the need arises.
An attorney must be at least 16 years old. You can choose your spouse or partner, another relative, or even a close friend.
You do not need to name the same person to make decisions for both your property and personal care. You can name different attorneys for each type of power of attorney. For example, your trust business partner may be your attorney to make decisions about your money and property. You may appoint a different attorney, perhaps your spouse, to manage your health and personal care.
Should I Name More Than One Attorney?
Appointing multiple attorneys in a power of attorney is a personal choice that depends on various factors. On one hand, it can provide checks and balances, ensuring that responsibilities are shared and decisions are made collectively.
However, it can also complicate decision-making processes if the attorneys disagree. Can the co-attorneys that you have in mind get along and work well together?
Consider the following when deciding whether to appoint more than one attorney:
1. Complexity of Decisions: If your affairs are complex or involve diverse areas (financial, medical, business), having specialized attorneys may be beneficial.
2. Trust and Reliability: Ensure that all appointed attorneys can work harmoniously and are trustworthy. Conflicting opinions among attorneys might impede efficient decision-making.
3. Backup and Continuity: Appointing multiple attorneys can ensure continuity if one becomes unavailable due to illness, travel, or any other reason. In this instance, you would not need to appoint a new attorney, the remaining attorney would be able to step in.
Do I Need a Lawyer to Make a Power of Attorney Document?
You don’t necessarily need a lawyer to create a power of attorney document, but consulting one can be highly beneficial. An estate lawyer well-versed in Ontario law can provide invaluable guidance tailored to Ontario’s legal requirements. They understand the intricacies of provincial laws and can ensure your power of attorney document complies with Ontario’s specific regulations.
Can I have a living will?
You may have heard the term “living will” before, but it is not recognized in Ontario. However, you can prepare an advanced medical directive that outlines your wishes if you cannot make those decisions for yourself.
You may wonder how that differs from a power of attorney for personal care. A power of attorney for personal care appoints someone to make those decisions for you. An advanced directive will not name any individual but will set out your wishes.
This is important to have if you have strong feelings about your medical care, such as whether or not to prolong your life in certain situations or if you are morally opposed to certain medical procedures or practices. Some include their advanced directive with their power of attorney for personal care, so their attorney is aware of their wishes.
Do I need a trust for my children?
Many parents leave their estates to their children in the event that both parents pass away. However, it can be concerning to wonder if their child will be ready for that responsibility on their 18th birthday.
Our role as parents is to protect our children and sometimes that means protecting them from themselves.
A trust is a legal entity that holds your estate on behalf of your beneficiaries. You can appoint a trustee to distribute the estate as per your instructions. For example, that may mean allowing certain expenses (i.e. buying a home, university, etc.). However, you may hold back the bulk of the estate until the beneficiary reaches a certain age, such as the age of 25, when most persons are far more fiscally responsible than they were at, for instance, age 18.
Comprehensive Estate Planning
As you can see, there is more to estate planning than a will. Of course, each document mentioned above has its own legislative requirements to be valid and legally binding.
Speaking with a lawyer about your estate planning is a necessary step. You can have peace of mind knowing that legal complications will not burden your family after you have passed.
Speak with us today about how we can ensure that your estate planning is comprehensive and fits your needs. Book a call here.