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Continuing Power of Attorney for Property

A Power of Attorney for Property is a legal document that lets someone make decisions about your property. This person is your attorney. In Canada, attorney does not usually mean lawyer.

Property includes your money and everything you own. It also includes anything that only you have the right to use, such as an apartment you rent or a car you lease.

There are 2 types of Powers of Attorney for Property.

Continuing Power of Attorney for Property

This resource talks about a Continuing Power of Attorney for Property. This power of attorney lets your attorney act for you if you are mentally capable. And they continue to act if you become mentally incapable of managing your property.

If you want your attorney to act for you only when you are mentally incapable, you can say this in your power of attorney.

General Power of Attorney for Property

A General Power of Attorney for Property lets your attorney manage your property only while you are mentally capable. For example, you might want to do this for a limited time while you are sick or on vacation.

If you become mentally incapable, this power of attorney ends, and your attorney can no longer act for you.

What does it mean to be mentally capable?

You are mentally capable of managing your property when:

• you understand information that relates to making a decision about your property, and
• you know what is likely to happen if you make or do not make a decision and what that means.

What can your attorney do?

Unless you limit what your attorney can do, they can do almost anything with your property that you can.

For example, your attorney can:

• do your banking and sign cheques
• buy or sell real estate
• pay your rent
• sign a lease or other legal documents
• buy items and services for you like clothing, furniture, and home repairs

But your attorney can never:

• make or change your will, or
• make a new power of attorney for you.

Should I make a power of attorney?

Doing this lets you choose someone you trust to look after your property. No one can force you to make a power of attorney.

If you do not have a power of attorney

If you become mentally incapable and do not have a power of attorney, certain things can happen.

You might be able to make a power of attorney

Even if you are not capable of managing your property, you may be capable of making a power of attorney.

For example, you may not remember how much your rent is. But you know that you have to pay rent each month. And you want your child to pay it from your bank account.

A guardian might manage your property

A person or the Office of the Public Guardian and Trustee (OPGT) could go to court and ask to be your Guardian of Property. This means that they would manage your property.

Someone could arrange to have you assessed by a capacity assessor. Or, if you are a patient in a psychiatric facility, a doctor might assess you.

If they find you incapable, the OPGT becomes your Statutory Guardian and makes decisions about your property.

If this happens, your spouse, partner, or relative can apply to the OPGT to replace them and manage your property instead. They must send a plan for how they will do this.

Someone might manage your government income

It might be possible for someone to ask the source of your government income if they can manage it for you. This could be income from pensions, income support, and certain benefits.

Can I make a power of attorney?

You must be at least 18 years old and mentally capable.

You are mentally capable of making a power of attorney if you:

• know what property you have and roughly what it is worth,
• know if someone depends on you financially and what you need to do for them,
• know what power you are giving your attorney,
• know that your attorney must be able to explain what they do with your money and property, and
• know that as long as you are mentally capable, you can cancel your power of attorney.

As well, to be mentally capable, you must understand that:

• your property could lose value if your attorney does not do their job well, and
• your attorney might act in ways that are not proper, such as using your money for themselves.

Who can be my attorney?

You can choose anyone who is 18 years of age or older. For example, this could be a family member, friend, or professional like a lawyer or accountant. Think carefully and pick someone you trust.

The law says there are things your attorney must do, such as:

• look after your property and finances, for example, support you and your dependants, and pay your debts
• act honestly and in a way that helps you
• keep detailed records of what they do
• help you take part in decisions as best you can
• consult with people who support you

The law says that your attorney can be paid a certain amount, unless you say something different in your power of attorney.

Before choosing your attorney, it is a good idea to learn what they must do and talk to a lawyer.

Can I name more than one attorney?

Yes. But if you name more than one attorney, they all need to agree on a decision. This is called acting jointly.

To change this, you must write something else in your power of attorney. For example, you could say that they can decide together or on their own. This is called acting jointly and severally.

You can also name one or more substitute attorneys. They act if your other attorney or attorneys are not willing or able to.

How do I make a power of attorney?

It is a good idea to have a lawyer make or review your power of attorney. But you can also make one on your own.

The Office of the Public Guardian and Trustee has a form you can use. To get a paper copy, call 1-800-366-0335. For TTY, call 416-314-2687. For an online copy, visit ontario.ca/OPGT.

CLEO’s Guided Pathways has a free tool to help you make or cancel a power of attorney. Visit stepstojustice.ca/GP-POA.

To make a Continuing Power of Attorney for Property, the document must be called a Continuing Power of Attorney.Or, you must write in the document that it gives your attorney power to continue acting for you if you become incapable.

When your power of attorney starts working

Your Continuing Power of Attorney normally starts working when you and your witnesses sign it.

You and your attorney can manage your property while you are mentally capable. If you become incapable, your attorney does this on their own.

For it to start working only if you become mentally incapable, you must say this in your power of attorney. If you do that, a capacity assessor must decide if you are mentally incapable, unless you name someone else to assess you.

Your attorney could also start managing your property if you are a patient in a psychiatric facility and a doctor finds you mentally incapable.

Choose your witnesses

You must have 2 witnesses who see you sign your power of attorney. They must sign it as well and usually need to be with you when you sign.

If you cannot all be in the same place, there are special rules about signing remotely. Talk to a lawyer about how this works.

Your witnesses cannot be:

• your spouse or partner, your child, or someone you treat as your child, or
• your attorney or their spouse or partner, or
• anyone who is under the age of 18.

As well, a person cannot be a witness if they have a Guardian of Property, a Statutory Guardian, or a Guardian of the Person.

Your spouse is someone you are married to.

If you are not married, they are your spouse if you live in a conjugal relationship, which means it is like a marriage. And you also:

• have lived together for at least one year, or
• have lived together for less than one year and have a child together, or
• have a cohabitation agreement, which is a contract that says how unmarried partners will deal with issues.

Your partner is someone you have been living with for at least one year. And you have a close personal relationship that is most important to both of you.

Spouse and partner can have different meanings in other areas of law.

When does your power of attorney end?

Your Continuing Power of Attorney ends when you die or when:

• your attorney dies, becomes incapable, or resigns, unless you have more than one attorney or a substitute,
• a court appoints a Guardian of Property for you,
• you make a new one, unless the new one says that you want more than one power of attorney, or
• you cancel or revoke it while you are mentally capable.

Can I cancel my power of attorney?

If you are mentally capable of making a power of attorney, you can cancel or revoke it.

There is no special form for this. You make a written statement called a revocation or a Notice of Revocation that says:

“I revoke my Power of Attorney for Property that is dated [month, day, year] effective immediately.”

Sign and witness this as you did your power of attorney.

If you make a new power of attorney, all earlier ones are cancelled. If you do not want this to happen, talk to a lawyer.

Give a copy of the revocation or new power of attorney to anyone who has seen or has a copy of your old power of attorney. Destroy the old one if you can.

If you own a home or other real estate, get a lawyer to register the revocation or new power of attorney on the property title.

Getting legal help

If you have a low income, some community legal clinics can give free advice about powers of attorney or help you make one. To find the clinic nearest you, call 1-800-668-8258. For TTY, call 711. Visit legalaid.on.ca/legal-clinics.

The Law Society Referral Service gives you the name of a lawyer you can speak to for 30 minutes for free. Visit findlegalhelp.ca.

Pro Bono Ontario’s legal advice hotline can give you up to 30 minutes of free legal advice. Call 1-855-255-7256. Visit probonoontario.org.

JusticeNet is a non-profit organization that can connect you with a lawyer who charges reduced fees. Visit justicenet.ca.

Some places charge lower fees for services like axesslaw.com.