Powers of Attorney FAQ

A valid power of attorney for personal care must name the person you have chosen to act on your behalf, must be signed and dated by you, and must be signed and dated by two witnesses who saw you sign the document. The two witnesses cannot include:

• Your spouse, partner, child, or someone you treat as your child;
• The person you are naming as your attorney or their spouse or partner;
• Anyone under 18 years of age; or
• Anyone whose property is under guardianship or who has a guardian of personal care

In addition, you must be mentally capable of making a power of attorney for property at the time of execution (signing) of the document.

No.  Because of COVID-19, the Substitute Decisions Act was amended to allow for remote witnessing.  However, you are required to have a licensed lawyer or paralegal as one of the witnesses.  They will assist you in having the document properly witnessed.

A power of attorney for personal care only takes effect if you become mentally incapable of making your own personal care decisions.  In other words, the attorney cannot make personal care decisions for you until you have been found to be mentally incapable.

For treatment decisions, the health practitioner proposing the treatment is the person who must decide if you are capable of making the required decision.

For decisions about admission to a long-term care home, an “evaluator” must determine whether you are capable of making the required decision. Evaluators are nurses, doctors, occupational therapists, physiotherapists, psychologists, some social workers, speech language therapists, audiologists, or anyone else prescribed by regulation.  In most cases, the evaluator will be a placement coordinator from Ontario Health atHome (previously known as the Home and Community Care Support Services (HCCSS) and LHIN and the CCAC).

For decisions about personal assistance services in either a long-term care home or a retirement home, an “evaluator” (the same people who can make determinations about admission to long-term care above) must determine whether you are capable of making the required decisions.  The evaluator will likely be a staff member at the long-term care home or the retirement home.

If the decision is not one outlined above and is about shelter, clothing, hygiene or safety, unless you state otherwise in your power of attorney for personal care, it will be up to your attorney to decide whether you are mentally incapable of making the required decision. Therefore, if you want a different person to make this decision, you can name someone else in your power of attorney to confirm that you are mentally incapable.  The person does not have to be a health professional or anyone with any specific training.  It could be a specific person (your Aunt Martha) or a class of persons (your family physician).

If you state in your power of attorney for personal care that you want your mental incapacity confirmed but do not specify by whom, it will be confirmed by a “capacity assessor”.  A capacity assessor is someone who is specially trained and approved to determine mental capacity.  The capacity assessor will charge for this service.

If you are found to be incapable of making a decision about your capacity respecting health treatment, admission to a long-term care home, or personal assistance services in a long-term care home or retirement home, but you disagree with that finding, you can apply to the Consent and Capacity Board to review the finding of incapacity.

If the finding of incapacity is not in one of these three areas, there is no review process set out in the law.  You would have to go to court to challenge the finding.

No.  Capacity to make personal care decisions is issue and time specific.  The attorney for personal care can only make decisions for the specific issue that you are found incapable of.  For example, you can be incapable to make decisions about one type of treatment, but capable of making all other treatment decisions, or you could be incapable of making an admission decision, but capable for all treatment decisions.  Even if you are found incapable, if you become later become capable, you then make your own decisions.

Your power of attorney for personal care ends when:

• You die;
• Your attorney dies, becomes incapable, or resigns (however, this can be prevented if you name more than one attorney or if you name a substitute attorney);
• A court appoints a guardian of the person for you;
• You sign a new power of attorney for personal care while you are still mentally capable; or
• You revoke the power of attorney while you are still mentally capable.

A power of attorney is a document where you appoint someone to make property decisions for you.  There are two types:  a continuing power of attorney for property (most common) and a general power of attorney for property (less common).

A continuing power of attorney for property is a document made pursuant to the Substitute Decisions Act where you appoint one or more persons to make property decisions for you, either while you are capable and incapable, or just if you become incapable.  The person you appoint is called your attorney for property, the document is called the continuing power of attorney for property.  The types of decisions that you can authorize them to make or those in the areas of property – which includes any type of financial decisions, such as dealing with bank accounts, pensions and other income, real property such as houses and cottages, paying your bills, doing your taxes, buying you things, etc.  The “attorney” is the person making decisions, NOT a lawyer.

The Power of Attorney Act states that a general power of attorney for property is a legal document that lets your attorney manage your finances and property only while you are mentally capable. For example, your attorney can act for you in financial and bank-related dealings, by signing cheques, and buying or selling real estate and consumer goods.

This type of power of attorney is usually used in business or for short-term temporary reasons (e.g., if you are going on an extended vacation). If you become mentally incapable of managing your property or finances, the general power of attorney for property ends, and your attorney can no longer act on your behalf.

The “attorney” is the person who you are appointing to make decisions for you.  Depending on how you draft your continuing power of attorney for property, the attorney may be able to make decisions for you both while you are capable as well as if you become incapable.  An “attorney” does NOT mean a lawyer.

The only legal requirement when choosing an attorney for property is that they are 18 years of age or older.  However, when choosing your attorney, you should pay careful consideration to many factors, especially whether the person you choose is trustworthy and whether they are good at handling money.  You can also appoint an organization such as a trust company to be your attorney for property.

A valid power of attorney must name the person you have chosen to act on your behalf, must be signed and dated by yourself, and must be signed and dated by two witnesses who saw you signing the document. The two witnesses cannot include:

• Your spouse, partner, child, or someone you treat as your child;
• The person you are naming as your attorney or their spouse or partner;
• Anyone under 18 years of age; or
• Anyone whose property is under guardianship or has a guardian of personal care.

No.  Because of COVID-19, the Substitute Decisions Act was amended to allow for remote witnessing.  However, you are required to have a licensed lawyer or paralegal as one of the witnesses.  They will assist you in having the document properly witnessed.

A continuing power of attorney for property takes effect immediately upon being signed and witnessed, unless otherwise stated in the document. Accordingly, you do not necessarily have to be incapable of managing your property to have your attorney for property to act on your behalf.

However, if you want your continuing power of attorney for property to take effect only AFTER you have become mentally incapable of managing your finances, you must make this clear in the document.  It is up to the individual making the continuing power of attorney whether they want their attorney to be able to help them now or only after becoming mentally incapable.

If the continuing power of attorney for property is valid upon signature, if you become incapable no finding is necessary for the attorney to continue to act.

If you want the attorney for property to make decisions only after you become incapable and do not say anything else, then it will be up to your attorney to make the decision as to whether or not you are incapable.

If you want the incapacity to be confirmed by someone other than your attorney, you can either simply state you want it confirmed, or you can name a person or class of people to confirm your incapacity to manage property.   If you name someone, they do not have to be a health professional or anyone with any specific training.  It could be a specific person (your Aunt Martha) or a class of persons (your family physician).

If you state in your continuing power of attorney for property that you want your mental incapacity confirmed but do not specify by whom, it will be confirmed by a “capacity assessor”.  A capacity assessor is someone who is specially trained and approved to determine mental capacity.  The capacity assessor will charge for this service.  If you are admitted as an in-patient to a psychiatric facility, the assessment for capacity to manage property will be performed by your doctor when you are admitted.

In order give a valid continuing power of attorney for property, you must be at least 18 years old and mentally capable. Mental capacity for the purpose of giving a continuing power of attorney for property means you must:

• Know what you are giving your attorney the authority to do;
• Know what property you have and its approximate value;
• Know that your attorney is required to account for the decisions they make about your property;
• Understand that if your attorney does not manage your property well, its value may decrease;
• Understand that there is always a chance that your attorney could misuse their authority; and
• Know that as long as you are mentally capable, you can revoke the power of attorney.

If you want to challenge a finding of incapacity with respect to a continuing power of attorney for property you will have to go to Court.  The only exception is if you are an in-patient in a psychiatric facility and your doctor found you incapable of managing your property pursuant to the Mental Health Act.  In some cases, you may then have the ability to challenge the finding at the Consent and Capacity Board.

Your continuing power of attorney ends when:

• Your attorney dies, becomes mentally incapable, or resigns (however, this can be prevented if you name more than one attorney or if you name a substitute attorney);
• A court appoints a guardian of the property for you;
• You sign a new continuing power of attorney for property while you are still mentally capable;
• You revoke the power of attorney while you are still mentally capable; or
• You die.