Frequently Asked Questions

CONTINUING POWER OF ATTORNEY FOR PROPERTY

What is a Continuing Power of Attorney?

A Continuing Power of Attorney is a document which authorizes another person or persons to act on your behalf and states that it is to continue to have effect after your loss of mental capacity. It can be general, authorizing the named attorney(s) to do almost anything you can do, or it can be restricted. Restrictions may limit that authority in a variety of ways, including:

• acting on your behalf with respect to a specified matter (such as the closing of a house purchase while you are out of town);

• acting on any matter on your behalf, but only during a specified period of time;
  

• acting on any matter on your behalf, with certain specified exceptions; or

• acting on any matter on your behalf, but only upon the happening of a specified event (such as your loss of mental competence).

Why should I have a Continuing Power of Attorney?

A Continuing Power of Attorney is a simple and inexpensive means of choosing a person or persons to deal with your property on your behalf, in the event that you should lose your mental capacity, whether as a result of accident, illness or progressive disease.

What happens if I become mentally incompetent, but I have no Continuing Power of Attorney?

That depends on the circumstances. In some cases, control of your property may pass to the Public Guardian & Trustee (PGT), a government official, as your statutory guardian of property. If that should happen, a close family member may apply to the PGT to take over the administration of your property. An entirely separate process involves a court application for appointment as a guardian of your property. Neither of these alternatives is very satisfactory. The PGT, although required to act in your best interests, is a stranger to you and your family and may well make decisions that neither you nor your family would agree with. On the other hand, the court application is bound to involve substantial legal expense.

I already have a Continuing Power of Attorney at my bank, appointing my husband to act on my behalf. Do I need another one?

The Continuing Power of Attorney which the bank had you sign is limited to dealing with matters at the particular bank. It will be of no use in dealing with other property you have. For example, if it should be necessary for your shares in a company to be sold, the bank's Continuing Power of Attorney would not give your husband the authority to do so.

I executed a Power of Attorney many years ago, appointing my brother as my attorney. Does a Power of Attorney become invalid after a period of time?

While a Power of Attorney does not "expire" with the passage of time, if your Power of Attorney was executed a number of years ago, an old form of Power of Attorney may have been used, with the result that the Power of Attorney will become invalid in the event that you should lose your mental competence! For that reason, you should have your lawyer review the Power of Attorney to see if that is a problem and, if so, have a new one drawn.

I have property located outside of Ontario. Can my Ontario Continuing Power of Attorney be used to deal with it?

The authority of the named attorney to deal with your property outside of Ontario will depend on the nature of the property and the jurisdiction in which it is located. To be on the safe side, it would be prudent to discuss this matter with a lawyer in the jurisdiction where the property is located.

Can the person named in my Continuing Power of Attorney make decisions concerning proposed medical treatment if I am unable to give consent due to mental incapacity?

The authority granted by your Continuing Power of Attorney is limited to matters relating to your property. A separate document, known as a Power of Attorney for Personal Care, can be signed to deal with proposed medical treatment (as well as certain other decisions, such as safety, hygiene, nutrition, clothing and shelter.)

How do I choose an attorney to act on my behalf?

Deciding who should be able to deal with your property if you become mentally incompetent can be difficult. Sometimes, a close family member is a good choice. You must be confident that, if you should become mentally incompetent, your attorney will act honestly and in good faith and will exercise good judgment, even if the exercise of that judgment would not necessarily lead to the same decisions or actions you would have taken in the circumstances. Setting out your views and philosophy in a memorandum or letter to your attorney may be helpful to your attorney in making decisions with which you would be content.

Can I make a Continuing Power of Attorney now, but put it away until it is needed (that is, when I become mentally incompetent)?

The problem with this approach is that a Continuing Power of Attorney is not effective until it is delivered to the named attorney. You cannot deliver it once you have become mentally incompetent. Your loss of competence may occur without any warning and, if you have not yet delivered the Continuing Power of Attorney to your attorney, it will be too late to do anything about it.

If I deliver my Continuing Power of Attorney, how can I be sure that the named attorney will not use it without my knowledge or consent?

Obviously, this is a matter of trust and you must be confident that the person you have chosen to act as your attorney will not exercise the authority against your wishes or your interest. An attorney who does not act in good faith in dealing with your property will be accountable to you in law.

Can I include a restriction in the Continuing Power of Attorney to the effect that it is not to be used unless I am mentally incompetent?

Such a restriction can be included in the document, but it may cause problems for your attorney when he or she attempts to present it to a third party. How will that third party know whether the requirement in your Continuing Power of Attorney has been satisfied? If time is of the essence for the attorney to act on your behalf (say, for example, selling property of yours in a rapidly falling market), the resulting uncertainty over whether the condition has been met could be financially disastrous.

Is there anything I can do if I am uncertain about giving an unrestricted Continuing Power of Attorney while I am still competent?

There are a number of ideas you might consider:

• give clear written instructions in a separate letter or memorandum to your attorney, advising him or her that although the Continuing Power of Attorney is unrestricted, you do not wish it to be used unless it is clear that you are unable to manage your own affairs;

• name two attorneys who must act jointly, thereby reducing the risk that the Continuing Power of Attorney will be used improperly; or

• lodge the Continuing Power of Attorney with a third party, with clear written instructions as to when it is to be released (for example, only if the named attorney provides the third party with a written opinion from a duly qualified medical practitioner attesting to the fact that you are no longer able to manage your financial affairs).

How can I revoke a Continuing Power of Attorney?

You can revoke a Continuing Power of Attorney previously given only if you are mentally competent to do so at the time of revocation. As well, there are formal requirements for execution of a revocation of a Continuing Power of Attorney previously given. It is not sufficient to inform the named attorney that you are revoking his or her authority. Nor is it sufficient to give written notice to third parties to that effect. However, you may expect that any third party receiving such a notice will tread very carefully before continuing to deal with the named attorney. If possible, you should retrieve all original copies of the Continuing Power of Attorney. Certain events will automatically revoke a Continuing Power of Attorney. The most significant of these is your death, although the named attorney may act, and third parties may rely, on the authority contained in the Continuing Power of Attorney if neither party is aware of your death at the time.

Does my attorney get paid for acting on my behalf?

Unless there is a specific provision in the Continuing Power of Attorney stipulating otherwise, the attorney will be entitled to be paid for services rendered in accordance with a prescribed fee schedule. All reasonable out-of-pocket expenses are reimbursed.