Power of attorney form ontario

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  • Just in case anyone needs to fill out a Powers of Attorney Form, I found a blank form in this site PDFfiller. This site also has several related forms that you might find useful. http://goo.gl/h0z6ft
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Power of attorney form ontario

  1. 1. Prepared By: Page 1 of 12 Michael Carabash Powers of Attorney in Ontario DISCLAIMER: Please note that the information provided in this DL Guide is NOT legal advice and is provided for educational purposes only. Laws are subject to change quickly and without notice. This DL Guide may be outdated. You are always advised to consult with a lawyer to draft and resolve disputes involving Powers of Attorney in Ontario, Canada (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can contact Michael Carabash directly at michael@carabashlaw.com. Last Updated: June 2010 © 2008-2010, Dynamic Lawyers Ltd. All Rights Reserved. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  2. 2. Powers of Attorney in Ontario Page 2 of 12 Table of Contents What is a Power of Attorney?......................................................................................................................... 3 What is a Power of Attorney for Personal Care?............................................................................................ 3 What are the legal requirements to have a Power of Attorney for Personal Care? ........................................ 4 When does a Power of Attorney for Personal Care take effect? .................................................................... 5 What is a Continuing Power of Attorney for Property? ................................................................................. 5 Why should I have a Continuing Power of Attorney for Property? ............................................................... 6 What if I don’t have a Continuing Power of Attorney for Property? ............................................................. 6 When does a Continuing Power of Attorney for Property become effective? ............................................... 6 What are the legal requirements to have a Continuing Power of Attorney for Property? .............................. 7 How do you terminate a Power of Attorney? ................................................................................................. 8 What is the basic structure of a Power of Attorney? ...................................................................................... 9 Is a “Power of Attorney for Personal Care” a “Living Will”? ..................................................................... 11 About Us ....................................................................................................................................................... 12 Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  3. 3. Powers of Attorney in Ontario Page 3 of 12 What is a Power of Attorney? In Ontario, a Power of Attorney is a legal document that designates an individual (known as an “Attorney”) to act on behalf of a person in respect of their property or personal care. The word “attorney” does not mean that the person is or becomes a lawyer. They are simply the person appointed as such and nothing more. There are two kinds of powers of attorney: those concerned with property and those concerned with personal care. Everyone should have powers of attorney to make sure that their financial and personal affairs are capable of being looked after when they become unable to look after those things themselves. Remember: when you die, your Powers of Attorney are terminated and your Will (if you have one) takes effect. What is a Power of Attorney for Personal Care? A Power of Attorney for Personal Care is a legal document made under the Substitute Decisions Act, 1992 wherein a person names another person (i.e. the attorney) and usually a substitute person (i.e. a substitute attorney who makes decisions in case the attorney cannot or will not) who will have authority to make personal care decisions on the former person’s behalf. Personal care includes health care, nutrition, shelter, clothing, hygiene, and safety. Importantly, the terms of one’s Living Will (a document which indicates your final wishes concerning your medical treatment when you are no longer able to communicate, and which is discussed below) can be incorporated into your Power of Attorney for Personal Care. Unlike Living Wills, Powers of Attorney for Personal Care are legal documents which CAN be enforced. Keep in mind that your Power of Attorney for Personal Care only applies while you are alive (unlike a Last Will and Testament, which applies after you die). Overall, it is best to speak with a lawyer about preparing a Power of Attorney over Personal Care. For more information about Living Wills and Powers of Attorney in Ontario, check out these great government resources: 1. Power of Attorney and Living Wills, Questions and Answers, Ontario, The Office of the Public Guardian and Trustee (Reprinted in 2009); and 2. Power of Attorney, Booklet, Ministry of the Attorney General Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  4. 4. The full DL Guide is available for FREE with the purchase of a Legal Form. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  5. 5. Powers of Attorney in Ontario Page 5 of 12 When does a Power of Attorney for Personal Care take effect? A Power of Attorney for Personal Care takes effect when a person is incapable of understanding information that is relevant to make a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene, or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decisions. In other words, if a person cannot make some or all of their personal care decisions due to mental incapacitation, then the Power of Attorney for Personal Care is triggered. Generally, the power of attorney becomes effective when a doctor or evaluator determines that you are incapable of making a decision under the Health Care Consent Act regarding your health care, admission to a care facility or personal assistance services. For other care decisions, such as shelter, clothing or hygiene, the Power of Attorney for Personal Care becomes effective generally (i.e. unless specified otherwise in that document) when your attorney for personal care believes that you are incapable of making decisions related to those aspects of your personal care. Remember: you may be capable of making decisions about certain aspects of your personal care, but not others. The Power of Attorney for Personal Care is not a free-for-all: it only applies to those aspects of your personal care which you are incapable of making decisions about. What is a Continuing Power of Attorney for Property? A Continuing Power of Attorney for Property is a legal document made under the Substitute Decisions Act, 1992 wherein a person grants their decision-making authority over their property and financial affairs to another person. This document deals with things like banking, securities, insurance, retirement savings, annuities, real estate, businesses, etc. The word “Continuing” or “Enduring” is used to demonstrate that, even after the grantor (i.e. the person making the power of attorney) becomes incapacitated, the power of attorney will still continue or endure with legal effect. A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. These may be used if you need someone to sell your property, for example, while you’re away for an extended period of time. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  6. 6. The full DL Guide is available for FREE with the purchase of a Legal Form. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  7. 7. Powers of Attorney in Ontario Page 7 of 12 What are the legal requirements to have a Continuing Power of Attorney for Property? To have a valid Continuing Power of Attorney for Property under the Substitute Decisions Act, 1992: 1. The document itself must state that it is a continuing power of attorney or otherwise express the intention that the authority given may be exercised during the grantor’s incapacity to manage property. 2. The document must authorize a person to be an attorney. 3. The grantor (i.e. the person giving the power of attorney) must have capacity to give the continuing power of attorney (i.e. through knowledge, awareness, appreciation, etc.). 4. The document must be signed by two witnesses who are (among other things) not the grantor or attorney’s spouse or partner, a person less than 18 years old, or a child of the grantor (or someone who the grantor has demonstrated a settled intention to treat as his or her child). The Power of Attorney for Property need not be in a set form or template. A word or two on the requirement that the grantor must have sufficient capacity to grant the power of attorney. The grantor must be over the age of 18 and must be mentally capable as demonstrated by things like: • knowing what kind of property he or she has and it’s approximate value; • is aware of the obligations owed to his or her dependents; • knows that the attorney must account for his or her dealings with the person’s property; • knowing what authority is being granted to the attorney; • appreciates that the attorney’s mismanagement could result in a decline of the value of property; and • understanding the consequences of an attorney misusing their authority. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  8. 8. The full DL Guide is available for FREE with the purchase of a Legal Form. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  9. 9. Powers of Attorney in Ontario Page 9 of 12 What is the basic structure of a Power of Attorney? Identification First, the grantor (the party making the Power of Attorney) and the nature of the document (e.g. Power of Attorney for Personal Care) are identified. The date on which the Power of Attorney is made is typically included here too. Revoke Previous Power of Attorney Next, you should consider whether you need to revoke any previous powers of attorney you have made. This won’t always make sense: for example, you may not want to invalidate a Continuing Power of Attorney for Property by adding a general revocation in a Power of Attorney for Personal Care! Appoint an Attorney Next, you’ll need to identify your attorney. Use their full legal name and even adding an identifier (e.g. my son, my spouse, etc.) may help. You can also consider appointing more than one person as your attorney. This may be to share or divide responsibilities and to make sure there are sufficient checks and balances on decision-making; at the same time, it may overly complicate things and cause headache (diverging opinions coupled with joint decision-making authority may cause delays and turmoil!). Appoint a Substitute Attorney For whatever reason, in case the individual you appointed is incapable (e.g. vacation, sickness, death) or unwilling (e.g. through retirement) to act as your attorney at the time they need to, you should appoint a substitute attorney. Better be safe than sorry! Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
  10. 10. The full DL Guide is available for FREE with the purchase of a Legal Form. Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com

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