What Is a Power of Attorney (POA)?

A Power of Attorney (POA) is a formal legal instrument that grants a trusted individual the legal authority to make decisions and act on your behalf. A POA is an essential tool for personal planning, ensuring that your financial, property, and personal care affairs can be managed seamlessly if you are unable to do so yourself due to illness, incapacity, travel, or other circumstances.

Governing Legislation for Powers of Attorney in Ontario

The legal framework for Powers of Attorney (POAs) in Ontario is governed by both statutory law and common law. The applicable rules depend on the type of authority you are delegating.

Key Types of Power of Attorney in Ontario

Type of POA	Legal Basis	Scope of Authority	When is it Effective?	When does it End?
1. Continuing POA for Property	SDA (Statutory)	Broad financial, property, and legal matters.	Immediately, and continues even if the Grantor becomes mentally incapable.	Revocation by the Grantor or their death.
2. POA for Personal Care	SDA (Statutory)	Health and personal well-being decisions.	Only when the Grantor is determined to be mentally incapable of making those decisions.	Revocation by the Grantor or their death.
3. General POA	Common Law	Broad financial, property, and legal matters (excluding personal care).	While the Grantor is mentally capable.	Automatically if the Grantor becomes mentally incapable, or upon their death.
4. Specific (Limited) POA	Common Law	Restricted to one defined task (e.g., selling a specific asset) or time period.	While the Grantor is mentally capable.	When the specified task is completed, or upon the date/event set in the document.

1. Statutory Powers of Attorney (Substitute Decisions Act, 1992 - SDA)

These POAs are established by and strictly regulated under Ontario’s Substitute Decisions Act, 1992 (SDA). They are specifically designed for long-term planning, particularly to address situations where the grantor may become mentally incapable of making their own decisions.

The two main types are:

Continuing Power of Attorney for Property: Used for financial, property, and legal affairs.
Power of Attorney for Personal Care: Used for health and personal well-being decisions.

Validity Requirements Under the SDA

To be legally valid, a statutory POA must meet the requirements set out under the Substitute Decision Act, including:

a. Capacity Requirements (The Grantor)

The person creating the Power of Attorney (the Grantor) must be mentally capable at the time of signing. The standard for capacity varies slightly based on the type of POA:

Document	Minimum Age	Capacity Standard
Continuing Power of Attorney for Property	18 years of age	The Grantor must understand: (1) the scope of the attorney's authority; (2) the nature and value of their property; (3) the possibility that the attorney could misuse the power; and (4) the requirement for the attorney to account for transactions.
Power of Attorney for Personal Care	16 years of age	The Grantor must understand: (1) whether the appointed attorney genuinely cares for their well-being; and (2) that they may need the attorney to make personal care decisions for them.

b. Execution Requirements (The Signing)

The document must be in writing and correctly signed and dated by the Grantor.

c. Witnessing Requirements

To be valid, the Grantor must sign the power of attorney in the presence of two (2) witnesses, who must also sign the document in the Grantor's presence.

Who Can Be a Witness? A witness must be at least 18 years of age and mentally capable.
Who CANNOT Be a Witness (Disqualified Persons): The following individuals are legally disqualified from acting as a witness:
- The person appointed as the Attorney.
- The Attorney's spouse or common-law partner.
- The Grantor's spouse or common-law partner.
- A child of the Grantor or someone the Grantor has demonstrated a settled intention to treat as a child.
- A person whose property is under Guardianship.
- A person who is the Guardian of the Person (specific to a power of attorney for personal care).

d. Attorney Requirements

The person appointed as the Attorney must also meet certain criteria:

Document	Minimum Age of Attorney	Key Requirement	Exclusions
Continuing POA for Property	18 years of age	Must be mentally capable of managing property.	None specifically listed in the SDA, but must be capable.
POA for Personal Care	16 years of age	Must be mentally capable of making personal care decisions.	Cannot be a person who is paid to provide healthcare or personal care services to the Grantor (e.g., a doctor, nurse, attendant), unless that person is the Grantor's spouse, partner, or relative.

2. Common-Law Powers of Attorney

These POAs are governed by general principles of common law, offering flexibility for customized or temporary arrangements. They are generally used when the grantor remains mentally capable but requires assistance for specific tasks or during a defined period.

The two main types are:

General Power of Attorney: Grants broad authority over financial and legal affairs (but not personal care) while the grantor is capable. It automatically terminates if the grantor becomes incapable.
Specific (Limited) Power of Attorney: Grants narrow authority for a single task or specific, defined purpose (e.g., selling one piece of property).

While common-law POAs have different rules regarding termination upon incapacity, they should still be signed and witnessed using the same rigorous standards as the SDA documents to ensure acceptance by financial institutions and other third parties.

Defining Roles: Grantor and Attorney

The document involves two key parties:

The Grantor: The person creating the document and delegating the authority (i.e., you).
The Attorney: The person appointed to act on your behalf. This individual is legally bound to act honestly and in your best interests.

The Scope of an Attorney's Authority

A Power of Attorney permits the appointed attorney to manage affairs falling into two broad categories:

1. Property, Financial, and Legal Decisions

This authority may be granted under a Continuing POA for Property, General POA, or Specific POA. It typically includes:

Managing bank accounts and paying bills.
Administering or selling real estate and other property.
Handling investments, pensions, and business operations.
Signing contracts, legal documents, and filing administrative applications.

2. Personal and Health Decisions (Personal Care POA Only)

This authority is exclusively granted under a Power of Attorney for Personal Care. It only takes effect if the grantor becomes mentally incapable of making their own decisions and can cover:

Medical treatment and healthcare choices.
Decisions regarding long-term care facilities.
Matters concerning safety, hygiene, nutrition, and living arrangements.

Note: Under Ontario law, no other type of POA (whether statutory or common-law) can legally authorize an attorney to make personal care or health-related decisions.

Why a Power of Attorney is Indispensable

Without a legally valid Power of Attorney in place:

No Automatic Authority: Family members, including spouses, do not automatically gain the legal right to manage your finances or make healthcare decisions if you are incapacitated.
Court Intervention: Loved ones may be forced to apply to the court for guardianship, a process that is often time-consuming, expensive, and stressful.
Public Guardian: In the absence of a suitable individual, the Office of the Public Guardian and Trustee may become involved in managing your affairs.

A POA ensures that you choose the person who holds this critical legal authority, maintaining control over your personal and financial future.

The Notary Public's Role in Power of Attorney Preparation

Do you need a notary to sign your power of attorney? No, but it is highly recommended.

While a Power of Attorney does not legally require notarization to be valid in Ontario, having the document notarized by a Notary Public significantly enhances its strength, credibility, and acceptance.

Notarization helps by:

Confirming Identity: Verifying the identity of the grantor and attorney.
Witnessing: Providing an eligible and credible third-party witness, often required by financial institutions.
Deterring Fraud: Reducing the risk of future disputes or claims of fraud.
Ensuring Acceptance: Making the POA more readily accepted by Canadian banks, government agencies, and foreign authorities.
Use Abroad: Making the power of attorney more readily accepted outside Canada.

At NotaryServe®, we assist in the accurate preparation, witnessing, and notarization of both statutory and common-law POAs to ensure legal compliance and security.

Key Steps for Creating Your Power of Attorney

Select an Attorney: Choose someone trustworthy, capable, and willing to act in your best interests.
Define Powers: Clearly specify the scope of the authority you are granting (General, Limited, Personal Care, or Property).
Adhere to Requirements: Ensure the document is signed and witnessed in accordance with Ontario’s legal requirements.
Safekeeping: Store the original, executed POA document securely, and inform your appointed attorney of its location.
Review and Update: Periodically review your POA, especially after major life changes (e.g., marriage, divorce, or the death of a designated attorney).

Conclusion

A Power of Attorney is a cornerstone of responsible personal and financial planning. Whether you are preparing for long-term incapacity with a Continuing POA or simply managing temporary administrative needs with a General or Specific POA, this document secures your ability to choose your representative. A correctly prepared and notarized POA offers invaluable peace of mind.

NotaryServe® is available to guide you through the process of correctly signing and notarizing your Power of Attorney documents.

Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. For advice tailored to your specific situation, you must consult with a qualified Ontario legal professional.