Disclaimer: This article on how to invoke a power of attorney in Ontario 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.

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. 

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. 

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.