Power of Attorney for Property

What is a power of attorney for property?

A power of attorney for property is a document in which you appoint an attorney to make decisions concerning your property if you are incapable of doing so. On WillMate, when we use the term "power of attorney for property", we really mean a springing, continuing power of attorney for property which is a power of attorney for property which only becomes effective if you become incapable of managing your property. In Ontario, it is subject to the Substitute Decisions Act, 1992.

What is an attorney for property?

An attorney for property is a person who you appoint to manage your property if you become incapable of doing so.  They can access bank accounts, pay bills on your behalf and even sell your property if necessary.  An attorney in this context is different than a lawyer.

Who should I choose as my attorney?

You should choose someone who has a genuine concern for your welfare and who has the ability to manage your property.  This could be a spouse, children, sibling or even close friends. Consider items such as their proximity to you, ability to manage your property and other demands on them.

You can appoint more than one attorney, as well as alternate attorneys, who would act if one or more initial attorney's are unable to do so.

When would I be incapable?

You are incapable if you cannot understand information that is relevant to making a decision in the management of your property, or are unable to appreciate the natural consequences of a decision or lack of decision. The power of attorney can set out the method for determining whether you are incapable, for example by one or two doctors.  If the power of attorney does not set out any method, a licensed assessor makes that determination.

What are the requirements to make a valid power of attorney for property?

In order for a power of attorney for property to be valid, the power of attorney must state that it is a "continuing power of attorney for property" and confirm that its power is to be exercised during your incapacity to manage property.

You must also be capable of making the power of attorney for property. The Substitute Decisions Act, 1992 (Ontario) sets out a list of factors which must be met for you to be capable of making the power of attorney for property, including that you:

• knows what kind of property you have and its approximate value;
• are aware of obligations owed to your dependants;
• know that the attorney will be able to do on your behalf anything in respect of property that you could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;
• know that, if capable, you can revoke the power;
• know that the attorney must account for their dealings with your property;
• know that, if capable, you may, if capable, revoke the continuing power of attorney;
• appreciate that unless the attorney manages the property prudently its value may decline; and
• appreciate the possibility that the attorney could misuse the authority given to them.

How are they signed?

A power of attorney for property must be witnessed in the presence of two witnesses who cannot be the attorney, the attorney's spouse or partner, the child of the person making the power of attorney, a minor and certain others.