A complete reference for Ontario estate lawyers — covering the Substitute Decisions Act requirements for Continuing POA for Property, POA for Personal Care, capacity standards, attorney duties, and revocation.
Powers of Attorney are among the most important documents an Ontario resident can have. Without them, a family member who loses capacity faces a lengthy and expensive court-supervised guardianship process. With properly drafted POAs, an attorney can manage property and personal care decisions immediately.
Ontario's Powers of Attorney are governed primarily by the Substitute Decisions Act, 1992 (SDA) and, for non-continuing POAs, the Powers of Attorney Act, RSO 1990. This guide covers the key distinctions, execution requirements, and attorney obligations Ontario estate lawyers need to know.
| Type | Governs | Effective When | Witnesses |
|---|---|---|---|
| Continuing Power of Attorney for Property (CPOA) | Financial and property matters | Immediately on signing (or as specified) | 2 witnesses (neither can be attorney) |
| Non-Continuing Power of Attorney for Property | Specific property transactions | On signing | 2 witnesses or notarized |
| Power of Attorney for Personal Care (POAPC) | Health care, shelter, nutrition, hygiene, clothing | Only when grantor becomes incapable | 2 witnesses (not attorney; not care provider) |
Important: A will does not authorize an attorney to act. The attorney's authority ends at death — the estate is then governed by the will and estate trustee.
The SDA sets different capacity tests for granting a POA for Property versus a POA for Personal Care.
The grantor must know and understand:
The grantor must:
Note: This is a lower threshold than for POA for Property — recognizing that personal care decisions are more urgent and the grantor may be in a marginally impaired state.
| Duty | Property | Personal Care | Notes |
|---|---|---|---|
| Act in grantor's best interests | ✓ | ✓ | Property: financial interests; Personal Care: health and safety |
| Consult with grantor | ✓ | ✓ | Must consider grantor's wishes expressed while capable |
| Keep records and accounts | ✓ | — | Property attorney must keep detailed financial records |
| Keep property separate | ✓ | — | Cannot mix attorney's own funds with grantor's funds |
| Act in accordance with SDA | ✓ | ✓ | Must comply with all Substitute Decisions Act requirements |
| Inform grantor of decisions | — | ✓ | Must explain health-care decisions to grantor to the extent possible |
| Authorized investments only | ✓ | — | Trustee Act authorized investments; must diversify |
| No conflict of interest | ✓ | ✓ | Cannot benefit personally unless authorized by grantor |
If a person becomes incapable without a valid POA in place, a family member or the Public Guardian and Trustee must apply to the Ontario Superior Court of Justice for a guardianship order under Part II or III of the SDA. This process is significantly more time-consuming and expensive than a properly drafted POA.
Applied for under s. 22 SDA; requires capacity assessment; PGT may become statutory guardian immediately on incapacity finding if no CPOA exists.
Applied for under s. 55 SDA when no POAPC; more complex proceedings; court must be satisfied no less restrictive means exist.
PGT becomes automatic guardian of property when Ontario Regulation 26/95 capacity assessor finds incapacity — limited scope, may apply to replace PGT.
Private guardian must file detailed management plan showing how property will be managed; reviewed by the court.
A regular (non-continuing) Power of Attorney for Property automatically terminates if the grantor becomes mentally incapable. A Continuing Power of Attorney for Property (CPOA) survives mental incapacity and remains valid even if the grantor later loses the mental capacity to manage their property. The CPOA must be signed by two witnesses who are not the attorney and must explicitly state it is a continuing power of attorney.
Under s. 8 of the Substitute Decisions Act, 1992, a person has capacity to grant a POA for Property if they know what property they have and its approximate value, are aware of their obligations to dependants, know that the attorney will be able to do anything with the property that they could do (except make a will), know that the attorney must account for dealings with the property, know they may revoke the POA, and appreciate that the attorney may not have their best interests at heart.
Under the Substitute Decisions Act, a POA requires two witnesses. The following cannot be witnesses: the attorney or their spouse/partner, the grantor's spouse, child, or anyone the grantor has treated as a child, anyone whose property is being managed by the grantor as a guardian, and the grantor's care provider or their employees.
Under s. 38 of the Substitute Decisions Act, an attorney for property must: act with honesty, integrity, and in good faith; keep records of all transactions; invest trust property in authorized investments; keep the grantor's money separate from their own; and provide accounts if requested. The attorney must also consult with the grantor and act in accordance with the grantor's prior capable wishes.
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