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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.
Disclaimer: This article on estate planning in Ontario is intended for the purposes of providing information only and 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.
It has been said that estate planning is a gift to those you love, and we wholeheartedly agree. We know that no one wants to think about the end of our lives. However, we cannot overstate the importance of having these conversations and making these plans.
Too often, we have seen the pain and grief of a loss compounded by the stress and overwhelm of poor estate planning.
Planning for the end of your life means taking into consideration your unique circumstances. Our lives are all different, and the plans for our estates must reflect that.
This article outlines, at a very high level, how different factors influence your estate planning. Of course, we would be happy to speak further about your situation. You can book a consultation here for more information on estate planning in Ontario.
Estate Planning in Ontario: An Overview
Estate planning in Ontario is governed primarily by the Succession Law Reform Act (“SLRA”). Its last major update was in the 1970s; however, further changes have received Royal Assent, with some key amendments expected to become law in January 2022. We will discuss those changes in detail in a future article.
Estate Planning in Ontario: Your Relationships
Congratulations! You got married – we wish you many happy years together.
However, under Ontario’s current legislation, if you had a will before you got married, then your entire will has now been revoked unless you made it with marriage in mind. What does that mean for you? Your will may have had provisions protecting your children or donating to causes that you’re passionate about, but these are no longer valid.
If you recently got married or will be married shortly, it is worthwhile to look at your will. Fortunately, this is one of the changes being made to the SLRA. As of January 2022, marriage will not revoke a will, aligning Ontario with many other provinces.
In a common-law relationship
While you may have been with your partner longer than most married couples, Ontario’s legislation does not grant the same rights to common-law partners. Suppose you die intestate [definition: a person who died without having made a will]. Your common-law partner does not have a claim to your estate unless one of the following claims are filed: filing a dependency claim or filing a claim for unjust enrichment, both of which involve litigation (i.e. a lawsuit).
Of course, this is an unnecessary strain and expense. It is much more prudent and practical to have a will in place that recognizes your partner and provides for them in the event of your death.
As the SLRA currently stands, a separated spouse still stands to inherit a portion of the deceased spouse’s estate. That means that your home could automatically pass to your estranged spouse, instead of to your children or even a new common-law partner.
However, as of January 2022, those portions of the SLRA will be amended. The legislation defines situations that deem a couple to be separated. In those instances, a surviving spouse would be treated the same as if the couple was divorced.
Estate Planning in Ontario: Your Children
One key reason to have estate planning in place is to protect your minor children. Therefore, selecting a guardian is an important decision and one that should be given careful thought.
Generally speaking, a surviving parent would gain full custody of minor children. However, if there is no surviving parent, then other family members need to apply to the courts to gain custody. This could cause strife amongst your family if there are multiple claims and disagreements about who should be your children’s guardians.
You will also want to consider who will have guardianship over your estate’s assets. Children cannot inherit an estate, so a person will need to be appointed to care for those assets until the children reach the age of majority. That may, or may not, be the same person who has physical custody of the children.
Your children may be older, so their needs may be different. You will not have to think about a guardian; however, there are still decisions that you must make.
While an adult is legally defined as 18-years old, is that the age that you want your child to inherit your estate? Many parents consider their children’s maturity level and put a graduated trust in place. This means that a portion of the estate is released at certain points. It is a wise move that protects your child from the poor decisions of their young adulthood.
Are your children married? Would you want their spouses to inherit a portion of your estate, or should it pass on to any grandchildren? These are questions that must be asked and answered.
The traditional two-parent family is becoming increasingly less common, and complex “stepfamilies” are on the rise. If this is true for you, this needs to be reflected in your estate planning.
For example, you may have a child from a previous relationship. You get married but then pass away, and your will leaves your estate to your spouse (your child’s step-parent). The step-parent passes, but that estate is left to a new spouse or their children. Your child is not protected.
Another example, you and your spouse both have children from previous relationships. You both have wills in place that leave everything to each other and then are divided amongst all the children. You pass, and your relationship between your children and spouse sours. The step-parent amends their will so that their children, and not yours, inherit their estate. Again, your children are not protected.
While we hate to think about such horrible scenarios, it is a disservice to our children if we do not protect them after we are gone.
While you may consider your pet as part of your family, they are property in the eyes of estate legislation. Therefore, if you would like to plan for your pet’s care if you pass, it will have to be laid out specifically in your will.
Be Kind – Plan Ahead
We know that you love your family and want to do what’s best for them. Therefore, give them the gift of estate planning so that their loss does not have to include dealing with lengthy legal matters.
Our firm helps individuals match their estate planning to their lives. If you want to revisit your estate planning, please reach out to us here [link]. Our team would be more than happy to speak with you.