Navigating Ontario Power of Attorney: Your Ultimate Guide to Legal Wills and Estate Planning

Ensuring your loved ones are taken care of in the event of incapacity or death is a top priority. As an Ontario estate planning firm, Tabuchi Law is here to guide you through the complexities of Power of Attorney, Wills, and estate planning. This comprehensive guide covers everything you need to know to protect your wishes and your family.

• What is Power of Attorney?
• Types of Power of Attorney in Ontario
• Appointing a Power of Attorney
• Revoking a Power of Attorney
• Power of Attorney and Wills
• Incapacity and Substitute Decision-Makers
• Common Power of Attorney Questions

What is Power of Attorney?

Power of Attorney is a legal document that gives someone you trust, known as your "attorney," the authority to make decisions on your behalf. This is an essential part of estate planning, as it ensures your wishes are carried out if you become incapable of making decisions for yourself. Well, here's the thing - Power of Attorney is not just for the elderly or infirm. Unexpected accidents or illnesses can happen to anyone, so it's crucial for all adults to have this legal protection in place.

Types of Power of Attorney in Ontario

In Ontario, there are two main types of Power of Attorney: Power of Attorney for Personal Care and Continuing Power of Attorney for Property. Power of Attorney for Personal Care gives your attorney the authority to make decisions about your personal care, such as healthcare, housing, and other day-to-day living arrangements. Continuing Power of Attorney for Property allows your attorney to manage your financial affairs and property, even if you become mentally incapable.

It's important to note that these are separate documents, and you can choose different attorneys for each type. This provides an extra layer of protection and oversight for your affairs. Many people also create a General Power of Attorney, which is broader in scope and can be used while you still have capacity, such as if you need someone to manage your affairs while you're away.

Appointing a Power of Attorney

When appointing a Power of Attorney, you'll want to choose someone you trust implicitly to make decisions in your best interest. This is often a spouse, adult child, or close friend. It's a good idea to have a backup or "alternate" attorney as well, in case your primary attorney is unable or unwilling to act. Your attorney(s) must be at least 18 years old and have the mental capacity to make decisions.

To create a Power of Attorney in Ontario, you'll need to fill out the appropriate forms and have them properly witnessed and signed. Power of Attorney forms are available from the Government of Ontario website for free. You may also want to consult a lawyer to ensure your documents are legally binding and reflect your wishes accurately.

Revoking a Power of Attorney

There may come a time when you need to revoke or cancel a Power of Attorney. Perhaps you've had a falling out with your attorney, or your circumstances have changed. In Ontario, you can revoke a Power of Attorney as long as you still have the mental capacity to do so. To revoke a Power of Attorney, you'll need to fill out the appropriate forms and notify your attorney in writing.

It's important to note that a Power of Attorney is automatically revoked upon your death. Your Will then takes precedence, and your estate will be administered according to your final wishes.

Power of Attorney and Wills

Power of Attorney and Wills are both essential components of a comprehensive estate plan, but they serve different purposes. A Will outlines how you want your assets distributed after you pass away, while a Power of Attorney allows someone to manage your affairs while you're still alive, but incapable of doing so yourself.

It's a common misconception that a Will also covers decision-making during your lifetime. This is not the case - a Power of Attorney is a separate legal document that gives your attorney the authority to act on your behalf. Without a valid Power of Attorney, your loved ones may have to apply to the court to become your "Guardian of Property" or "Guardian of the Person," which can be a lengthy and costly process.

Incapacity and Substitute Decision-Makers

What happens if you become incapable of making decisions for yourself, and you don't have a Power of Attorney in place? In Ontario, the Health Care Consent Act and Substitute Decisions Act outline a hierarchy of "substitute decision-makers" who can step in to make decisions on your behalf.

These include your spouse, children, parents, siblings, and other close relatives. If you don't have any family members willing or able to take on this role, the Office of the Public Guardian and Trustee may become involved. To avoid the court-appointed process and ensure your wishes are followed, it's crucial to have a valid Power of Attorney in place.

FAQs

How do I get a Power of Attorney in Ontario?

To get a Power of Attorney in Ontario, you'll need to fill out the appropriate forms, which are available for free from the Government of Ontario website. It's a good idea to consult a lawyer to ensure your documents are legally binding and reflect your wishes accurately.

Can I revoke a Power of Attorney in Ontario?

Yes, you can revoke a Power of Attorney in Ontario as long as you still have the mental capacity to do so. To revoke a Power of Attorney, you'll need to fill out the appropriate forms and notify your attorney in writing.

What is a Continuing Power of Attorney for Property in Ontario?

A Continuing Power of Attorney for Property in Ontario allows your attorney to manage your financial affairs and property, even if you become mentally incapable. This is a separate document from a Power of Attorney for Personal Care, which covers decisions about your personal care and well-being.

How do I find a Substitute Decision-Maker in Ontario?

If you become incapable of making decisions for yourself and don't have a valid Power of Attorney, the Health Care Consent Act and Substitute Decisions Act in Ontario outline a hierarchy of "substitute decision-makers" who can step in, such as your spouse, children, or other close relatives.

Are Power of Attorney forms available for free in Ontario?

Yes, Power of Attorney forms are available for free from the Government of Ontario website. While you can download and fill out these forms yourself, it's recommended to consult a lawyer to ensure your documents are legally binding and reflect your wishes accurately.