Ontario Powers of Attorney: Continuing POA, Personal Care POA, and Capacity

March 2026 · 14 min read

Powers of attorney are among the most frequently drafted documents in Ontario wills and estate practice. The Substitute Decisions Act, 1992, SO 1992, c 30 (SDA) governs both the Continuing Power of Attorney for Property and the Power of Attorney for Personal Care. Getting the execution, capacity assessment, and attorney authority provisions right is essential — errors in POA documents create significant exposure for both the grantor and the drafting lawyer.

1. Two Types of Ontario Power of Attorney

2. Continuing Power of Attorney for Property

2.1 Capacity to Grant

Section 8 of the SDA sets out the capacity required to grant a continuing POA for property. The grantor must be capable of:

• Knowing what property they have and its approximate value
• Understanding that the attorney will be able to do on their behalf anything they could do personally in connection with property, except make a will
• Understanding that the attorney must account for their dealings with the grantor's property
• Understanding that they may, if capable, revoke the continuing POA
• Understanding that if the attorney does not manage the property prudently, the value may decline
• Understanding the possibility that the attorney could misuse authority

Capacity is assessed at the time the document is signed. A grantor who lacks full testamentary capacity or cognitive sharpness may still have capacity to grant a POA for property — the threshold is lower than testamentary capacity.

2.2 Execution Requirements

A continuing POA for property must be:

• In writing
• Signed by the grantor in the presence of two witnesses, or signed by another person at the grantor's direction in the presence of the grantor and two witnesses
• Signed by the two witnesses in the presence of the grantor

Who cannot be a witness (s. 10(2)):

• The attorney or the attorney's spouse or partner
• The grantor's spouse or partner
• A child of the grantor (or person the grantor has treated as a child)
• A person whose property is under guardianship
• A person who is less than 18 years of age

For the POA to continue to be effective after the grantor becomes incapable ("continuing"), the document must expressly state that it is a continuing POA. A POA that does not include this language is revoked by operation of law upon the grantor's incapacity.

2.3 Scope of Authority

An attorney for property may do on behalf of the grantor anything the grantor could do in connection with their property, except make a will. This is an extremely broad authority. The SDA allows restrictions — practitioners frequently include express restrictions on:

• Gifting (limiting or prohibiting gifts to third parties, including the attorney)
• Making loans to third parties
• Changing beneficiary designations on registered plans
• Managing specific types of assets (real property, investments)

2.4 Attorney Duties

Attorneys for property are subject to mandatory duties under ss. 38-40:

• Fiduciary duty (s. 38(1)): The attorney must act in the grantor's best interests and in accordance with the grantor's known wishes.
• Prudent investor standard (s. 38(3)): The attorney must exercise the care, diligence, and skill that a person of ordinary prudence would exercise in conducting their own affairs.
• Record-keeping (s. 38(5)): The attorney must keep accounts of all financial transactions — receipts, disbursements, and asset values.
• Separate property (s. 38(6)): The attorney must keep the grantor's property separate from the attorney's own property.
• Compensation (s. 40): An attorney may take compensation — 3% on capital and income receipts, 3% on capital and income disbursements, and 3/5 of 1% annual care and management fee — unless the POA specifies otherwise or the grantor agreed otherwise.

3. Power of Attorney for Personal Care

3.1 Capacity to Grant

Section 46 sets a different — and lower — capacity threshold for personal care POAs. The grantor must:

• Be at least 16 years old
• Have the capacity to understand that the attorney will make personal care decisions on their behalf while they are incapable

This threshold is intentionally lower than the property POA threshold because personal care decisions are immediate and health-based, and the legislature wanted to encourage planning by people across a broad range of cognitive ability.

3.2 Execution Requirements

A personal care POA must be signed by the grantor and two witnesses, with the same witness exclusions as the property POA — plus one additional exclusion: a person who provides health care, residential, social, training, or support services to the grantor for compensation cannot be a witness.

Unlike property POAs, personal care POAs automatically continue during incapacity — they are, by their nature, intended to activate when the grantor becomes incapable. There is no need to include "continuing" language.

3.3 Instructions and Wishes

The SDA permits the grantor to include instructions and expressed wishes in the personal care POA. These become binding on the attorney under s. 66(3): an attorney for personal care must follow the grantor's prior capable instructions. If the instructions create a risk of serious bodily harm, the attorney may apply to the court for direction.

Practitioners frequently include a "wish not to receive life-sustaining treatment" clause and advance directives about resuscitation, artificial nutrition, and palliative care. These are not separately enforceable outside the personal care POA framework in Ontario — there is no separate "living will" or "advance directive" legislation.

3.4 Attorney Duties for Personal Care

Attorneys for personal care must act under ss. 66-68:

• Act in the grantor's best interests
• Consider the grantor's prior capable wishes, values, and beliefs
• Choose the least restrictive and least intrusive course of action
• Encourage the grantor's participation in decisions to the extent possible
• Foster regular personal contact with supportive family members and friends

The attorney for personal care is not compensated from the grantor's property — this is a personal service role. The court may award compensation in exceptional circumstances.

4. When the POA Becomes Effective

A continuing POA for property takes effect when signed unless it specifies a future date or condition. A common drafting option is to specify that the POA only takes effect upon incapacity — reducing the risk of misuse while the grantor is still capable. The grantor may choose a "springing" POA that activates only upon a capacity assessment confirming incapacity.

A personal care POA takes effect when the grantor becomes incapable. An attorney for personal care may not act while the grantor has capacity to make the relevant personal care decision.

5. Revocation and Termination

6. The Office of the Public Guardian and Trustee (OPGT)

The OPGT is the statutory default decision-maker of last resort. It acts as:

• Statutory guardian of property: Where a person is found incapable under a formal capacity assessment and no attorney for property exists, the OPGT becomes the statutory guardian automatically. A family member may apply to the OPGT to displace the OPGT and become the guardian.
• Statutory decision-maker for personal care: In the hierarchy of substitute decision-makers under the Health Care Consent Act, the OPGT is the last resort when no other qualified SDM exists.
• Investigative function: The OPGT investigates allegations of financial exploitation of incapable adults and may apply to court for remedies including repayment of misappropriated funds.

7. Common Drafting Issues

• Missing "continuing" language: A POA for property without express "continuing" language is automatically revoked by incapacity, defeating the grantor's intent.
• Inadequate gifting restrictions: An unrestricted POA allows the attorney to make gifts (even to themselves). The default rule allows gifts consistent with the grantor's known pattern of giving. Practitioners should expressly address gifting — especially where there is any concern about the attorney misusing authority.
• No substitute attorney: If the named attorney dies, becomes incapacitated, or refuses to act, the POA may lapse. Always name a substitute attorney.
• Conflict between property and personal care attorneys: Where different individuals hold each POA, ensure clients understand that cooperation is required. Conflicts between the two attorneys — particularly over care placement vs. financial cost — can be disabling.
• Multiple attorneys: If multiple attorneys are appointed jointly, all must agree on every decision — potentially paralyzing. "Jointly and severally" or "majority" provisions avoid this problem.
• Springing POA logistics: A property POA that springs on incapacity requires a formal capacity assessment before taking effect. This can delay urgent action. Consider whether the grantor prefers an immediately effective POA with appropriate safeguards.

8. Capacity Disputes and Challenges

Disputes about whether a grantor had capacity at the time of execution are common in estates litigation. The key principles:

• Presumption of capacity: Adults are presumed capable unless the contrary is established. The burden of proving incapacity rests on the challenger.
• Point in time assessment: Capacity is assessed as at the moment of signing. Fluctuating capacity (common in dementia) means capacity may exist at some times but not others.
• Medical evidence: Expert evidence from a geriatric psychiatrist or neurologist is typically required in capacity challenges. Medical records from around the time of execution are critical.
• Contemporaneous notes: Lawyers who take notes of a capacity assessment at the time of execution — recording their observations, the grantor's answers to capacity-testing questions, and their overall assessment — are in a much stronger position if challenged. These notes should be retained permanently.

Conclusion

Powers of attorney are the most consequential documents many clients will ever sign — more immediately impactful than wills during their lifetime. Lawyers who take the time to assess capacity carefully, draft appropriate restrictions, name substitute attorneys, and document the execution process protect their clients, themselves, and the integrity of the planning process.