An overwhelming majority of Ontario adults currently go about their daily lives without the security of having a properly drafted will and a power of attorney in place. It is important to address these matters regardless of one’s age in order to avoid the pitfalls of probate, and to provide yourself and your loved ones with peace of mind through proper estate planning.
Powers of Attorney Generally
While Ontario law does not refer to the term “living will”, a properly executed Power of Attorney works to fill this void in the province. Powers of Attorney, unlike your last will and testament, maintain a legal effect only while you are living. A Power of Attorney is a legally binding document which requires one to appoint a specific individual or individuals, to make important decisions on your behalf. The document provides these appointed individuals with the legal authority needed to carry out important decisions. The types of decisions made pursuant to these documents depend on the nature of the specific type of Power Attorney drafted. Power of Attorney documents typically involve “Power of Attorney for Property”, and “Power of Attorney for Personal Care”.
While a Power of Attorney is not mandated by law in Ontario, the protection it offers, the peace of mind it provides, and its relatively low cost of creation, make it a foundational component of estate planning. One that we recommend to all of our clients, regardless of the particular stage of life they currently find themselves in.
In Ontario, the government does not maintain an official registry for these documents. Therefore, it is best practice to ensure that the location of these legal documents is known to the people who will be required to act upon them. We recommend, of course maintaining a copy for your own records, but also leaving copies with your lawyer, and any individuals who may have legal responsibilities pursuant to the document itself.
Without a Power of Attorney, should you become unable to make decision on your own behalf, another individual must petition a court in order to obtain legal authority to represent your affairs. Failing this, a court will appoint a guardian to represent your interests. In order to avoid this situation, it is important to have a legally enforceable Power of Attorney in place.
When appointing an individual as your attorney, any one over the age of 18 for property, and over the age of 16 for personal care, can legally assume this role. It is important to choose an individual who is responsible and trust worthy, as assuming the role of an appointed attorney requires a great degree of consideration and integrity. Best practice is to consult your lawyer when making this decision.
In the instance you wish to appoint more than one individual as your attorney, proper drafting is required to outline how decisions are to be made amongst these appointed individuals. If you elect for your attorneys to be required to act “jointly”, both individuals must make decisions together, one cannot act without the consent of the other. Conversely, if you elect for your attorneys to be required to act “jointly and severally”, one individual can make decisions either collectively or individually. Whichever variation you prefer, it is important to have this reflected clearly in the document in order to avoid contention or confusion down the road.
Your Power of Attorney, should you wish, can be revoked any time after its execution so long as you remain mentally capable. Otherwise, your Power of Attorney ends naturally upon your death, or the death of your appointed attorney.
It is important to consult with an experienced lawyer when drafting your Power of Attorney to ensure that your wishes are sufficiently documented and legally enforceable. At Carson Law we are dedicated to providing our clients with the highest level of professionalism in all aspects of our practice.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.