Two documents
Property and personal care: what each one does
Ontario’s Substitute Decisions Act sets up two separate documents. They can name the same person or different people, and most adults need both.
Continuing power of attorney for property
Your attorney for property can deal with your money and property: banking, paying bills and taxes, managing investments, dealing with government benefits and, if needed, selling or mortgaging your home. The law lets them do anything with your property that you could do, except make a will, subject to any conditions you set. “Continuing” means it keeps working if you lose capacity, which is the whole point; a power of attorney that isn’t continuing ends at exactly the moment it is needed. You must be 18 to make one.
When it takes effect
Unless the document says otherwise, a continuing power of attorney can be used as soon as it is signed, even while you are well. Some people want that: an adult child can pay bills while a parent is in hospital, without anyone having to prove incapacity. Others prefer it to take effect only on incapacity. If the document says so without saying how incapacity is to be confirmed, the law requires a finding by a capacity assessor or a certificate of incapacity under the Mental Health Act, which can mean delay and cost at a difficult time. We help you choose, and if you choose incapacity, we write in a practical way to confirm it, such as a letter from your doctor.
Power of attorney for personal care
Your attorney for personal care makes decisions about your health care, nutrition, shelter, clothing, hygiene and safety, but only decisions you are incapable of making yourself at the time. For medical treatment, they step in under the Health Care Consent Act when your health practitioner finds you incapable of the particular decision. You can make one from age 16, and it can include your wishes about treatment and care.
Capacity to sign each one
The tests are different. To give a continuing power of attorney for property, you must know roughly what you own and what it is worth, be aware of what you owe your dependants, and understand that your attorney can do almost anything with your property, must account for it, could misuse it, and that you can revoke the document while capable. To give a power of attorney for personal care, you need only be able to understand whether the person has a genuine concern for your welfare and appreciate that you may need them to decide for you. A person can therefore sometimes sign a personal care document when they can no longer sign one for property. We assess this at the meeting and keep notes.
Choosing attorneys
Who to appoint, and how they should act together
An attorney for property can have access to everything you own while you are alive. Trust matters more than financial skill, which can be bought.
One attorney, or more
If you name two or more attorneys, the law says they must act jointly, meaning together and unanimously, unless your document says otherwise. Joint action is a safeguard, but every cheque and every bank visit then needs everyone, which can be slow if one lives in another city. “Jointly and severally” lets any one of them act alone, which is convenient but removes the check. A middle route is to let them act separately for day-to-day banking and together for selling real estate or large withdrawals. If one of several joint attorneys dies or resigns, the others carry on unless you say otherwise.
Name a substitute
If your only attorney dies, becomes incapable or resigns and there is no substitute, the power of attorney ends. A named backup keeps your plan working.
Who can’t act
Someone who is paid to provide you with health care, residential, social or support services can’t be your attorney for personal care unless they are your spouse, partner or relative. An attorney for property must be at least 18, and an attorney for personal care at least 16. An attorney who lives outside Ontario can act, but banks and the Land Registry are easier to deal with from here, and if a court ever has to appoint a guardian of property, a non-resident generally has to post security.
Conditions and instructions
- Require your attorney to account to a named family member every year, so someone is watching.
- Limit or waive compensation. Without a clause, an attorney for property can take compensation on a fee scale set by regulation.
- Record wishes about keeping your home, supporting a spouse or making gifts to family.
- In the personal care document, state wishes about life support, long-term care or religious practices.
Why Wannes Law
A Toronto law firm that keeps you informed
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A licensed Ontario lawyer
Rosalie Wannes, licensed by the Law Society of Ontario, is responsible for your file from start to finish.
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Fees before you commit
Instant online quotes and published flat fees, so you know the cost before you retain us.
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Every step explained
Plain-language explanations of what happens, what you provide and what we handle, at every stage.
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Direct access
Reach your lawyer and law clerk directly by phone and email while your matter is underway.
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Sign in person or remotely
Meet at our Sheppard Ave E office in Toronto, or review documents by video and courier the originals.
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English, Armenian and Arabic
Talk through your matter in the language you are most comfortable with.
If you are the attorney
What the law expects of an attorney
Being named attorney is a legal responsibility, not only a family favour. The Substitute Decisions Act sets out duties that apply once the person can no longer manage for themselves.
Attorney for property
- Act as a fiduciary: diligently, honestly and in good faith, for the person’s benefit, not your own. Mixing their money with yours, or “borrowing” from it, is a breach.
- Keep accounts: a record of every transaction, in the form the regulations require, with receipts. You may be asked to produce them years later.
- Pay for the essentials: the law requires spending that is reasonably necessary for the person’s support and care and for their dependants, and paying the person’s legal obligations.
- Consider their wishes and wellbeing: explain your role to them, encourage them to take part in decisions, and consult supportive family and caregivers.
- Don’t change their will: an attorney can’t make or change a will, and should avoid selling property the person has left in their will to someone specific, where possible.
The court can order an attorney to pass their accounts, meaning to have them reviewed and approved by a judge. The person, their attorney for personal care, a dependant, the Public Guardian and Trustee and others can ask for that, so good records protect you as much as the person.
Attorney for personal care
Follow the wishes the person expressed while capable, if they apply to the situation; otherwise act in their best interests. For treatment decisions, the Health Care Consent Act applies the same rule, for wishes expressed after age 16. Consult family and caregivers, encourage independence and choose the least restrictive option available.
If you have been named as an attorney and need advice on your role, or you are dealing with a parent’s affairs after their death, our probate and estate administration page explains what changes: the power of attorney ends at death, and the estate trustee takes over.
Without one
What happens if you don’t have a power of attorney
In Ontario, a spouse or adult child has no automatic right to manage your finances, however close the family.
Property: the Public Guardian and Trustee, or a court application
If you are found incapable of managing property, for example by a capacity assessor or on a certificate of incapacity issued in a psychiatric facility, the Office of the Public Guardian and Trustee can become your statutory guardian of property. Your spouse, partner or a relative can then apply to the Public Guardian and Trustee to replace it, with a management plan explaining how they will look after your property, and fees apply. The alternative is an application to the Superior Court of Justice to be appointed guardian of property, which needs evidence of incapacity, notice to family and often a lawyer. Ontario’s pages on guardianship and mental capacity describe both routes. A signed power of attorney avoids all of it.
Health care: a fixed list decides
For medical treatment, the Health Care Consent Act names who can decide for you, in order: a court-appointed guardian, your attorney for personal care, a representative appointed by the Consent and Capacity Board, your spouse or partner, your children or parents, then brothers and sisters, then other relatives. If people of the same rank disagree, the Public Guardian and Trustee decides. The list may not match your choice: a trusted friend is not on it at all, and two adult children with equal rank can deadlock. For decisions outside health care, such as where you live, the family may need a court order appointing a guardian of the person.
Why it matters for couples and property
If a home is owned by two spouses and one loses capacity without a power of attorney, the other can’t sell or refinance it alone, and a guardianship application can take months. The same applies to joint investments that need both signatures.
How it works
Putting powers of attorney in place
Usually a short instructions meeting and a signing appointment, or both in one visit for a straightforward plan.
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Step 1: Choose a package
The power of attorney package covers both documents. If you don’t have a will, the single will package includes both powers of attorney with the will. Start in the quote form or book a free 15-minute call.
POA package $500 + HST · single will package $1,000 + HST.
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Step 2: Decide who acts, and how
We talk through your attorneys and substitutes, whether they act jointly or separately, when the property document takes effect, compensation, accounting to family, and your wishes about care. You give your instructions yourself, without the proposed attorneys deciding for you.
You provide
- Full names and contact details of your attorneys and substitutes
- A general picture of your property and any dependants
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Step 3: Sign with two witnesses
Each document is signed in front of two witnesses. The law bars your attorneys and their spouses or partners, your own spouse or partner, your children, anyone under 18 and anyone under guardianship from witnessing. The lawyer confirms your capacity and that the choices are your own. A home or hospital visit in the GTA is available where a medical or mobility reason makes coming in difficult.
We handle
- Capacity assessment notes
- Proper witnessing
Home or hospital visit: $500 + HST.
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Step 4: Afterwards
Tell your attorneys where the originals are. Some people keep the original somewhere safe and tell the attorney how to find it when it is needed, so that it can’t be used before they intend. Review the documents when your family or health changes.
In practice
Using, changing and revoking a power of attorney
Banks and the Land Registry
- Banks usually ask to see the original or a notarial copy, identify the attorney, and review the document before adding them to your accounts
- Bank-branded power of attorney forms often cover only that bank. Be careful signing one: a new continuing power of attorney cancels earlier ones unless it says you intend to have more than one
- To sell or mortgage real estate, the lawyer acting on the deal checks that the power of attorney is valid, still in effect and gives the needed authority; see our page on selling a home
Revoking or replacing
- You can revoke either document while you have the capacity to make it
- A revocation must be in writing and signed with two witnesses, like the original
- Signing a new power of attorney revokes the old one unless the new one says otherwise
- Tell the old attorney and any bank that has a copy, and ask for the originals back
- It ends automatically at your death; your estate trustee then takes over
Made outside Ontario
- Ontario treats a power of attorney as properly signed if it met the formal rules of the place where it was signed, or where you lived or were domiciled then
- In practice, Ontario banks and registries may still hesitate over unfamiliar foreign forms
- If you now live in Ontario, signing new Ontario documents is usually simpler than relying on old ones
Fees
Fees
A home or hospital visit in the GTA adds $500 + HST, available where a medical or mobility reason makes coming in difficult. Services in English, Armenian and Arabic. See all our legal fees.
Get your instant quoteQuestions
Power of attorney questions
What is the difference between a power of attorney for property and for personal care?
A continuing power of attorney for property covers your money and property, and can be used as soon as it is signed unless it says otherwise. A power of attorney for personal care covers health care, housing, nutrition, clothing, hygiene and safety, and only applies to decisions you are incapable of making yourself.
How much does a power of attorney cost?
The power of attorney package with both documents is $500 + HST. Both are included in the $1,000 + HST single will package and, for each spouse, in the $1,750 + HST couples wills package. See our will packages.
Does my spouse automatically have power of attorney in Ontario?
No. Without a continuing power of attorney, your spouse can’t manage your property if you lose capacity. They would have to replace the Public Guardian and Trustee as statutory guardian or apply to court. For health-care treatment decisions, a spouse or partner does rank high on Ontario’s list of substitute decision-makers.
Can my attorney use the power of attorney while I am still capable?
Yes, unless your document says it only takes effect on incapacity or another event. While you are capable you remain in charge: you can give your attorney instructions and revoke the document.
Can I appoint two of my children?
Yes. They must act together unless your document lets them act separately. We talk through which suits your family, and whether to require them to agree on big decisions such as selling your home.
Can I use a bank’s power of attorney form instead?
A bank’s form usually covers accounts at that bank only. Signing one can also cancel your existing continuing power of attorney unless one of the documents says you intend to have more than one.
Can a power of attorney be signed over video?
Ontario law allows witnesses to attend by live video if at least one witness is a lawyer or paralegal licensed in Ontario and everyone signs at the same time. The documents are still signed on paper.
Can a power of attorney make or change my will?
No. An attorney for property can do almost anything with your property that you could, but can’t make a will for you. The power of attorney ends when you die, and your estate trustee takes over.
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