When does a Power of Attorney in Ontario take effect?

an elderly man reviewing paperwork as his daughter watches. how to invoke a power of attorney in Ontario

Disclaimer: This article on how to invoke a power of attorney in Ontario is intended for the purpose of providing information only. Iis to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

We have discussed the importance of drafting powers of attorney as part of your estate planning process. A power of attorney documents your wishes related to your personal care and your finances if you do not have the capacity to make those choices for yourself. 

However, when does your power of attorney take effect? This article will answer that question and other commonly asked questions relating to powers of attorney. 

Each family and situation is unique, as are the choices you must make in your estate planning. We help families just like yours with these decisions every single day. Book your complimentary consultation with our team to learn more. 

What is a Power of Attorney (POA)?

A Power of Attorney is a legal document. It gives someone you trust, the “attorney,” the legal authority to make decisions on your behalf if you become mentally incapable.  Appointing an attorney to manage your affairs is no small matter. You must trust this person quite a bit – after all, they can make decisions regarding your finances or personal care wishes.

The Different Types of Power of Attorney

There are two types of Power of Attorney: Property and Personal Care.

Power of Attorney for Personal Care

This type of POA pertains to health and personal care decisions. It authorizes someone (the attorney) to make choices regarding medical treatment, long-term care, housing, and overall well-being when the grantor cannot. It includes decisions about going into long-term care, accepting or refusing treatment and other important decisions. 

Power of Attorney for Property

In contrast, the Power of Attorney for Property delegates authority over financial matters, including bank accounts, real estate, investments, and other financial affairs.  Your attorney would act as you in making financial decisions, such as managing bank accounts, buying or selling property, investing assets, paying bills, and handling day-to-day financial transactions.

How to Make a Power of Attorney in Ontario Take Effect

Power of Attorney for Personal Care

A Power of Attorney for Personal Care will only take effect when the grantor is incapable of making decisions themselves.

 Who determines if the grantor has become incapable or cannot make their own decisions? That depends on the wording of your Power of Attorney. 

In some instances, the attorney can make that determination themselves. In other cases, you may need to arrange for a capacity assessment. It may be that your power of attorney requires that the grantor’s incapacity be proven before it comes into effect. You may also need to have one completed before moving your loved one into long-term care.

We discuss capacity assessments in detail here, but capacity assessors are a distinct group of health professionals qualified to determine whether or not you can make your own decisions and understand the impacts of those decisions relating to your care. 

Power of Attorney for Property

A Power of Attorney for Property is also sometimes called a Continuing Power of Attorney because it can take effect immediately unless you state otherwise.  That means your attorney can use the power of attorney at any time – whether you need them to or not! You can also include language that your attorney can only make decisions once you are mentally incapable. 

Carefully consider how you want to word your power of attorney. On one hand, it can be wise to set up a safeguard to how and when someone can use a power of attorney. On the other hand, obtaining a capacity assessment takes time, meaning your attorney must wait to exercise their authority. This means that there may be a delay in being able to pay bills or handle other important matters. 

Additionally, some financial institutions may require a capacity assessment before your attorney for property can do anything, even with a valid power of attorney in place.  

Can I revoke my power of attorney? 

Yes, you can revoke or cancel your power of attorney. You can revoke a power of attorney by: 

  • creating a new power of attorney; or
  • creating a written declaration, known as a “revocation” or a Notice of Revocation. 

It’s best to speak with a lawyer to ensure it complies with Ontario’s estate law.  

I have been appointed an attorney but cannot fulfill the role. Now what? 

Yes, you can resign as a power of attorney if you are unable or unwilling to fulfill the duties effectively. Acting as an attorney is an important role. Therefore, it is wise to consider carefully whether you are up to the challenge. We discuss some of the nuances in this article, but it may be as simple as a written statement formally resigning.  

What if there is no power of attorney?

If you do not have a power of attorney, your family can go to court and have the court appoint someone as your attorney. If you do not have someone willing or able to take on this responsibility, the Office of the Public Guardian and Trustee may become involved. 

It is much better to prepare ahead of time and appoint someone in advance. If not, someone may make decisions regarding your healthcare, property and finances that do not align with your wishes.   

Preparing your Wills and Power of Attorney with Beeksma Law

At Beeksma Law, we understand the significance of meticulous legal planning. Our team specializes in guiding individuals through creating Wills and Powers of Attorney tailored to their needs, ensuring clarity and compliance with Ontario laws.

Seeking legal advice when establishing one ensures that your wishes are accurately documented and safeguarded. Let us help you give your family the greatest gift of all – peace of mind. Contact us today to begin. 

How will you handle unique assets in your estate plan? 

a collection of art, antiques and other items to represent unique assets that would be part of your estate planning

Disclaimer: This article on estate planning and unique assets is intended for the purpose 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 and does not purport to be exhaustive.

As part of our estate planning checklist, we ask you to take some time to consider any significant assets. For many Canadians, they think about their homes, their vehicles, life insurance policies, investment accounts and other items. 

However, what about your online assets?  Have you considered other things close to your heart, such as your collections or even your pets? 

To create a comprehensive estate plan, you’ll want to consider how these items impact the value of the estate. It can affect your estate tax planning and impact how your assets are distributed. 

This article will discuss some unique assets and how you can best communicate your wishes regarding these items. 

Digital Assets

Digital assets are a relatively new area to consider in estate law; however, the reality is that many of us own intangible assets. This can include cryptocurrencies, websites, online accounts and even your travel miles! These are part of your estate and should be considered in your estate planning documents. 

Not only should you consider an inventory of these assets, but consider how your estate trustee will be able to access them. While you can consider providing passwords or access to an online password manager (such as LastPass), do not include it in your will. Your will becomes part of the public record during the probate process. Certainly, that would create a serious security risk!   

Collections

Collections often hold either sentimental or financial value. Whether it’s rare coins, comic books, or even items like high-end sneakers, their unique nature demands specific attention in an estate plan. 

The more information you can give your beneficiaries about your collection, the better. Ideally, you should have a catalogue of your collection that includes its appraised value.  It would be a separate document referenced in your will, and it would be wise to update it regularly.  

Since a collection is many items, knowing where they are stored will help your executor locate and distribute them. 

This is one area where you will want to discuss your plans with your family. Your collection may reflect a shared passion or has sentimental value to specific members. Openly communicating your intentions regarding the collection can prevent misunderstandings or conflicts among your beneficiaries. 

Art:

Art is a unique part of estate planning, blending personal expression and financial value. Handling art in your estate plan involves detailed cataloging, verifying authenticity, and documenting its history. This comprehensive record, including descriptions and authenticity certificates, helps everyone involved understand your art collection.

Deciding what happens to your art—whether donated, sold, or passed down—requires clear instructions. Legal aspects like taxes and copyrights add complexity, so it is best to speak with your lawyer and financial advisor. By addressing these elements thoughtfully, your art can maintain its worth and significance for future generations.

Pets:

Pets are cherished family members, and their well-being after one’s passing is a concern for many. However, under the law, they are simply property. We dedicated an entire article to considering your pets in your estate plan, but you have many options, including creating a trust. 

When it comes to your pets, you will also want to include them in your power of attorney for property. In that case, someone can make important decisions on your behalf if you are unable to manage your affairs. 

Gifting Assets to Non-Resident Beneficiaries

While you may not be gifting a unique asset, distributing assets to non-resident beneficiaries adds complexity. Some objects cannot be exported from Canada without a permit under the Canadian Cultural Property Export and Import Act (Canada).  The Act contains a comprehensive list, which includes “objects of applied and decorative art” and “musical instruments.” 

It is worth speaking to your estate lawyer about any such objects to determine if your beneficiary designations require such a permit. 

Begin the Estate Planning Process with Beeksma Law 

As they say, if you fail to plan, you plan to fail, and at Beeksma Law, we want nothing but success for you. A good estate plan can give peace of mind to you, your family members and other beneficiaries. It can also help you lower your estate’s tax bill and assure you that your wishes are carried out. 

Don’t leave your legacy to chance – make Beeksma Law part of your estate plan today. Our team focuses on estate law and has helped many families avoid common estate planning mistakes. Take the first step today by booking a complimentary consultation. Let us assist you in crafting a comprehensive estate plan that reflects your wishes and secures your family’s future. 

Substantial Compliance: What Constitutes a Valid Will in Ontario? 

A person signing a document to represent the requirements of a valid will in Ontario

Disclaimer: This article is intended for the purpose of showing what constitutes a valid will in Ontario. 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. 

Crafting a will is vital in securing your estate’s future, yet it is important to ensure that you have created a valid will. However, understanding the law’s requirements can feel overwhelming. Contrary to popular belief, a will could be relied upon, even if it did not follow the formalities of a valid will. 

This article will discuss what makes a will legal and how the law changed in 2022. We will look at recent cases where wills were validated and what that means for executors. 

Elements for a Valid Will in Ontario

By way of review, the basic requirements for a valid will in Ontario are outlined in the Succession Law Reform Act (SLRA). All wills must be written and it must be dated and signed. There are two broad types of wills: Holographic wills and formal wills. 

Holographic wills, meaning those created entirely in your handwriting, have their own requirements, which we discussed in this article

Formal wills must be in writing but are typed or printed. They must accurately and unambiguously reflect the intentions of the testator (the person making the will). 

A legal will in Ontario would have three signatures – it is signed by the testator and two witnesses. The testator must sign in the presence of two witnesses, and the witnesses must sign in the presence of the testator. 

This principle applies to any will – whether you ask a lawyer to make your will or produce it using an online will platform. 

Only some people can be a valid witness. A witness must be over the age of majority (18) and not be a beneficiary of the will or a spouse of a beneficiary. 

What is “Substantial Compliance”? 

Previously, if any of those legal requirements were missing, a will would be considered invalid. For example, that means that if a will was missing a witness’ signature, that will would not be legally valid. If that were the only will available, intestacy laws would apply, and the courts would treat your estate as if you had died without a will.  

However, the SLRA was amended in 2022 for all deaths after January 1, 2022. A new section, 21.1, was added, which reads: 

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made. 2021, c. 4, Sched. 9, s. 5.

That means that even though a will might not strictly comply with the requirements noted above, you can ask the court to validate the will or deem it a valid last will and testament. A Court may determine that it be treated as if it were executed correctly. 

For the court to validate a document that does not meet the requirements as noted in the SLRA, it must be satisfied on a balance of probabilities that the document

  • is authentic
  • reflects a “deliberate and final expression” of the testator’s intentions regarding their estate plan.  

Recent Case Law Around What Makes a Valid Will

 Since the introduction of Section 21.1 of the SLRA in January 2022, a range of cases have been decided that help us see how substantial compliance can be applied in estate law.

Vojska v. Ostrowski

The Case: Vojska v. Ostrowski

The Facts: The applicant was the executor of his late mother’s estate. He and his sister were both sole beneficiaries. The lawyer overseeing the wills failed to sign their mother’s will despite signing all powers of attorney and their father’s will. No affidavits of execution were prepared, but the lawyer had billed their parents for the services, including the will signing.

The Court validated the will. The court recognized that the document reflected the mother’s final wishes, despite the oversight in proper execution due to the lawyer’s failure to fulfill formalities. 

Groskopf v. Rogers et al

The Case: Groskopf v. Rogers et al

The Facts: The deceased had completed a fill-in-blanks style document in her own handwriting, signifying it as her Last Will and Testament without dating or witnessing it. The document excluded the respondent as a beneficiary. At the time the document was created, the deceased and respondent had a strained relationship. They later reconciled, with the respondent becoming the deceased’s primary caregiver. Does that mean that the deceased had changed her final wishes? 

The Court validated the will.  The court determined that the document met the necessary criteria and represented the deceased’s fixed and final testamentary intentions when she created it. Further, the court emphasized that the subsequent reconciliation did not alter the intentions set out in the document. There was no evidence indicating the deceased’s intention to include the respondent as a beneficiary.

Grattan v. Grattan

The Case: Grattan v. Grattan (Grattan Estate) 

The Facts: A lawyer prepared a will for the deceased and sent it to the testator for her review. The testator made minor revisions. However, the will remained unsigned as the Deceased passed away suddenly before its formal execution.

The Court validated the will. It emphasized that a lawyer prepared the will based on clear and direct instructions, representing the deceased’s settled and unambiguous intentions. Additionally, the short period between the document’s review, the Deceased’s approval, and her passing supported the court’s finding that these were her ultimate intentions and that this was, in fact, a valid will. 

What does this mean for Estate Trustees (or Executors)?

The previous system of strict compliance was more straightforward in many respects. Previously, the absence of three signatures would quickly rule out a document as a valid will. However, with the current legislation, an unsigned document, if deemed to express testamentary wishes, could be considered relied upon in Ontario. 

If you are an executor of an estate where the deceased died after 2022, this change is noteworthy for you. Regardless of its signature status, you must consider any document as potentially carrying valid testamentary wishes. 

We strongly recommend seeking legal advice when presented with such materials that could be validated as a will. Together, we can assess the feasibility and necessity of initiating a court application to determine the document’s validity, safeguard your interests, and adhere to the deceased’s wishes.

If you intend to bypass the probate process, you should know the heightened risks of administering an estate without a Certificate of Appointment. In cases where a document is discovered and validated, you may run the risk of facing liabilities because of the absence of probate. 

Beeksma Law: Your Estate Lawyers 

When securing your estate’s future or managing the responsibilities of an estate trustee, Beeksma Law offers the expertise and guidance you need. Our team focuses on estate law and can advise on everything you need to know when making a will. Creating a solid estate plan is easier than you might think! 

Beeksma Law’s expertise also provides the necessary roadmap for estate trustees to navigate their responsibilities. Their guidance ensures each step of estate administration complies with the law, minimizing complexities and risks inherent in these responsibilities. 

Schedule your complimentary consultation today to get started. 

Estate Planning in Ontario – Pet Trusts & Other Care for Your Pet 

an older couple sitting outside with the dog, representing how important pets are and how you should create a pet trust.

Disclaimer: This article is intended for the purpose of providing for your pets, including creating pet trusts. 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. 

Whether or not you call them your fur baby, our pets are more than animals for many of us. To many Canadians, they are beloved family members, providing companionship, joy, and comfort. 

Because their lifespans tend to be much shorter than ours, we assume we will outlive our pets. However, that is not necessarily true. So, just as you meticulously plan for the well-being of your loved ones in your estate plans, it’s crucial not to overlook your furry or feathered friends. 

If you are a pet owner, how can you include your pets in your estate plan? What are your options? That is what we will consider in this article. 

The Legal Landscape in Ontario: Pets as Property

Under Canadian law, including in Ontario, pets are considered property, and as such, they lack the legal capacity to own or inherit assets. This classification presents unique challenges when explicitly leaving money or property directly to your pets in your will. However, this doesn’t imply a lack of options for securing their future.

There are three basic ways to ensure your pets are cared for after you’re gone: 

  1. Designate a caretaker
  2. Designate an organization to act as a caretaker
  3. Set up a pet trust

Designating a Caretaker: Choosing Guardianship for Your Pet

Similar to appointing guardians for minors, identifying a trustworthy caregiver to care for the pets after you’re gone is crucial. Consider family members or close friends who share a bond with your pets and are both willing and capable of providing lifelong care. A heartfelt conversation with your chosen caretaker is essential to ensure they understand and accept this responsibility. While a primary caretaker is crucial, it’s wise to designate a backup in case your original caregiver is unable to care for your pet. 

Additionally, consider charitable organizations or shelters specialized in pet care. For instance, most Humane Societies offer a pet stewardship program, assuming custody and finding loving homes for pets after their owners pass away.

Financial Provisions: Ensuring the Financial Security of Your Pet

To alleviate financial concerns associated with pet care, consider you should leave an amount of money to your pet guardian in your will. This fund can cover expenses like veterinary care, grooming, food, and any unforeseen medical treatments your pet might require. 

How much should you leave for pet care? That depends. Consider how long your pet’s life is expected to be, what costs you are currently incurring and other factors. 

Incapacity Planning: Securing Care During Your Lifetime

As we have noted before, you need more than a will. What happens if you become incapacitated and can no longer care for your pet? Trusts and powers of attorney can be instrumental in addressing your pet’s care in case of your incapacity. While pets can’t inherit funds directly, a trust can designate funds for your pet’s care, with conditions tied to the designated caretaker ensuring proper care.

Setting up a Pet Trust: Ensuring the Future Care of Your Pets

While various trusts can be drafted, establishing a trust for pets demands precision to ensure its legality and enforceability. As the legal landscape surrounding trusts for pets continues to evolve, three fundamental rules are worth mentioning.

Beneficiary Enforcement and Legal Standing

One crucial element of any trust is that there must be a beneficiary or trustee who can enforce the terms of the trust. Practically and legally speaking, pets obviously lack the capacity to enforce a trust. 

Purpose and Charitable Intent 

Trusts must serve a clear purpose or have identifiable beneficiaries unless their purpose is deemed charitable. For instance, trusts designed for research and support surrounding a specific disease are considered charitable in Ontario. However, trusts created solely for pets might not meet the criteria for charitable purposes under the law.

Lawful Conditions and Public Policy

A trust can make gifts conditional on specific actions, provided these conditions are lawful and do not conflict with public policy. Creating a pet trust that adheres to these rules involves designating specific beneficiaries. As part of your trust, you can include instructions for the care of your pets. Funds from the trust are allocated for the explicit purpose of caretaking.

Termination Date

Additionally, each trust requires a termination date, signaling the final distribution of the trust fund. In the case of a pet trust, the termination typically coincides with the death of the last surviving pet. Any trust funds left are distributed per the terms outlined in your will. 

Creating an Estate Plan For Your Peace of Mind

Navigating the complexities of caring for every part of the family after you’re gone can be overwhelming. Seeking guidance from an experienced estate lawyer, such as the professionals at Beeksma Law, can streamline the process. An estate lawyer can help formalize legal arrangements, ensuring your directives concerning your pet’s care are documented, legally sound, and enforceable.

Incorporating your pets into your estate planning demonstrates a commitment to their well-being and happiness. Your furry friends hold a special place in your heart and deserve careful consideration in your plans for the future.

At Beeksma Law, our dedicated estate planning team understands the significance of including your pets in your estate plans. Contact us today for compassionate legal guidance to secure the future of your beloved pets.

Estate Law Case Study: Spouse dies without a will in Ontario 

a funeral for someone - the family mourning even more because the person made things more complicated by dying without a will.

Disclaimer: This article is intended for the purpose of providing an example of the dangers of dying without a will. 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. 

Creating an estate plan is on many of our to-do lists, but we procrastinate drafting it. There are many reasons. We may think we do not have a big enough estate to necessitate a will. We might believe that we are too young to have to worry about that yet. 

The reality is that everyone – regardless of the size of your estate, your age, or any other factor – should be creating an estate plan.  

In this real-life scenario, we examine a case involving someone who died intestate – meaning dying without a will – and the issues that arose because of that. (To learn more about how the laws of intestacy work in Ontario, read our blog article here.) 

Case Study: Spouse Died Without a Will 

Our client was the surviving spouse of a man who died without a will in place. The couple had minor children

Our client wanted to be appointed executor to manage her late husband’s estate. Simultaneously, she was also recognized as the natural guardian of their minor children. 

While seemingly straightforward, her journey to secure these roles was more complex than expected.

The challenge arose when the Office of the Children’s Lawyer, representing the best interests of minors in such cases, identified a potential conflict of interest in her dual roles as executor and guardian of the children. Concerned about the potential for conflicting priorities, the Office of the Children’s Lawyer insisted on the submission of a comprehensive management plan that would address this issue.

Our client turned to our firm, known for its expertise in estate law. We connected her with financial planners who could help her create a well-structured management plan that alleviated concerns and maintained transparency in her roles.

The importance of other professionals in estate law 

The collaboration between Beeksma Law and the financial planners was instrumental. Together, they developed a management plan that not only addressed the potential conflict of interest but also ensured the financial well-being and security of our client’s minor children. The plan detailed how she would manage her responsibilities as executor, taking into account her children’s interests and needs. 

By leveraging the resources and expertise of Beeksma Law and our network of professionals, our client successfully navigated this situation. The courts appointed her as the executor. Furthermore, the Office of the Children’s Lawyer accepted the management plan, ensuring her children’s best interests were at the forefront of all decisions. This case highlights the importance of comprehensive estate planning, especially in situations involving minors. It also shows the value of having trusted legal advisors like Beeksma Law to provide holistic solutions to complex challenges.

Preventing Unnecessary Complexity: The Role of Estate Planning in Ontario

The aforementioned case underscores the critical importance of having a well-drafted will in place. While the collaborative efforts between our client, Beeksma Law, and financial planners ultimately led to a successful resolution, it still created undue anxiety for our client. 

You can avoid unnecessary complications that arise from dying without a will by taking proactive steps in estate planning. 

Beeksma Law: Your trusted partner in estate issues planning 

Beeksma Law is your trusted partner in estate matters. Whether it’s crafting a well-drafted estate plan or helping you navigate any issues that arise during your loved one’s estate administration, we can guide you through the entire process.  Contact our team today to learn more.