SECTION 2
Who can I appoint as my attorney for property?
The law allows you to appoint anyone you choose as long as he or she is 18 years of age or more. You can name someone who lives outside the province. You can also name more than one person.
point more than one attorney will they have to do everything together?
Yes, unless you say in the CPOA that they can act “jointly and severally”. If you include this phrase, either of your attorneys will be able to act alone on your behalf. If one is away or sick, for example, the other would still be able to sign cheques and give instructions on your behalf.
When will my CPOA take effect?
Your attorney will be able to use the CPOA as soon as it is signed and witnessed, unless you say otherwise in the document. You might, for example, want to say that the power of attorney can only come into effect once you have been determined to be incapable of managing your property. If you do this, it is wise to say how your incapacity will be determined. A letter from your doctor might be sufficient, for example. But think carefully before you set these types of conditions as they may result in complications and delays if the need to use the document arises. You may instead wish to simply have an unwritten agreement with your attorney that he or she will use it only if you can’t look after these matters yourself and trust that your attorney will make the right decision at the time.
What does “incapable of managing property” mean?
It means that a person can’t understand information about his or her property or finances, or is unable to appreciate what could happen as a result of making a certain decision (or not making a decision) about these issues.
What powers will my attorney have?
Unless you restrict your attorney’s powers, he or she will be able to do almost anything that you can do concerning your finances. Your attorney can sign documents, start or defend a lawsuit, sell property, make investments and purchase things for you. Your attorney cannot, however, make a Will or give a new CPOA on your behalf. Think carefully before restricting your attorney’s powers. If you become incapacitated, and there are some assets that your attorney can’t look after, you may need to have a guardian appointed. If no one comes forward to apply to be your guardian, the OPGT may be required to act for you.
Is my attorney entitled to be paid?
Yes. Your attorney is entitled to take payment from your funds at a rate specified by law unless you say otherwise in your CPOA. If you want to set the amount yourself, or you don’t want your attorney to be paid at all, write this in the document.
If your CPOA is silent on the matter of payment your attorney will be entitled to:
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- 3% of money received;
- 3% of money paid out on the incapable person’s behalf; and
- 3/5 of 1% of the average annual value of the person’s assets.
Is my attorney required to keep my financial information confidential?
Yes, your privacy must be respected unless:
- you specifically authorize your attorney to disclose information by writing this in your CPOA; or
- your attorney needs to disclose information to carry out his or her duties or to abide by the law.
Is my attorney required to report to me?
It’s up to you. Your attorney is required to provide you with a full accounting whenever you ask for one.
If I change my mind, how can I cancel my CPOA?
To cancel your CPOA you must state in writing that you are “revoking” it. There is no special form for this statement, which is referred to as a “revocation”, but it must be signed and witnessed by two people, the same way as your Power of Attorney.
You are considered capable of revoking your CPOA if you have the capacity to make one..
What should I do once I’ve cancelled my CPOA?
Give the revocation statement to your attorney. You should also tell everyone who is involved with your income or property – such as your bank and pension sources – about the revocation. Send them a copy. If you own a home or other real estate you may wish to consider having a lawyer register notice of the revocation on title to prevent any unauthorized dealings. It is also a good idea to get the original CPOA back from your attorney and destroy it.
Can anyone witness my POWER OF ATTORNEY FOR PERSONAL CARE POAPC?
No. There are some restrictions. The following people cannot be witnesses:
- your spouse, partner, child, or someone you treat as a child;
- your attorney or your attorney’s spouse or partner;
- anyone under the age of 18;
- anyone who has a “Guardian of Property” (for example, someone appointed by a court to make decisions for a person who is mentally incapable of managing his or her property); or
- anyone who has a “Guardian of Person” (someone appointed by a court to make personal care decisions for a person who is not mentally capable of making his or her own decisions).
Note: A person is your “spouse” if:
- you are married to them;
- you have lived together common-law for at least a year; or
- you have had a child together.
A person of either sex is your “partner” if you have shared a place to live with them for at least a year and you have a close personal relationship of primary importance to both of you.
Who can make a Power of Attorney for Personal Care (POAPC)?
Anyone who is 16 years of age or older and who is mentally capable of making a POAPC can do so.
What level of mental capacity is needed to make a valid POAPC?
In this situation mental capacity means that you:
- understand whether the person you name as your attorney is truly concerned with your well-being, and
- understand that you may need this person to make decisions for you.
What types of decisions will my attorney for personal care be allowed to make?
Unless you restrict your attorney’s powers, he or she will be able to make almost any decision of a personal nature that you could normally make yourself.. Decisions about medical treatment, housing, food, hygiene, clothing and safety are examples of “personal care” decisions.
Who can I appoint as my attorney for personal care?
The person you appoint must be at least 16 years of age and mentally capable. You can name someone who lives outside Ontario. You cannot name someone who you pay to provide services to you, unless that person is a relative.
Give your choice very careful consideration. If the need arises, your attorney will be making profoundly important decisions about your health and quality of life.
Can I name more than one person as my attorney?
Yes. If you do this all attorneys will have to agree on every decision that is made for you, unless you write in your
power of attorney that they can act “jointly and severally”. If you include this phrase, any one of your attorneys will be able to make decisions on their own if the other is unavailable for some reason. But think carefully before naming multiple attorneys – it can make things more complicated if difficult decisions need to be made quickly.
When will my Power of Attorney for Personal Care come into effect?
Unlike a Power of Attorney for Property, a POAPC may only be used during a time that you are mentally incapable of making your own personal care decisions. It is up to your attorney to decide whether you are mentally incapable, with a few exceptions. If the decision is about medical treatment or admission to a long-term care facility, a health professional must determine whether you are incapable of such decisions before your attorney may act. In addition, you can say in your POAPC that your attorney is required to get independent evidence of your incapacity – a letter from your doctor, for example – before he or she may act on your behalf.
You should also know that your attorney will only be able to make those personal care decisions that you cannot make yourself. You might, for example, be incapable of making a serious health care decision but still be able to make your own choices about routine day-to-day matters.
What does “incapable of making personal care decisions ” mean?
It means that a person can’t understand the information that is relevant to the particular personal care decision or can’t appreciate what could happen as a result of making a certain decision (or not making a decision) about the matter.
How will my attorney make decisions for me?
If you have written a “living will” or “advance directive” that applies to the situation, your attorney is legally obliged to follow your wishes, if possible. If you told people, while you were capable, what you want, your attorney must try to follow your wishes, even though they are not written down.
If you have not provided these types of instructions then your attorney will decide what he or she believes is in your best interests in the circumstances.
If I change my mind, how can I cancel my POAPC?
To cancel your POAPC you must state in writing that you are “revoking” it. There is no special form for this statement, which is referred to as a “revocation”, but you it must be signed and witnessed by two people, the same way as your Power of Attorney.
You are considered capable of revoking your POAPC if you have the capacity to make one. This is addressed in question 49.
What should I do once I’ve cancelled my POAPC?
Give the statement to your attorney. Give a copy to any of the health care providers or caregivers who are aware of the
power of attorney. It is also a good idea to get the original POAPC back from your attorney and destroy it, if possible.
