What is a Power of Attorney and Why Do I Need One in Ontario?

Understanding what a Power of Attorney (POA) is and why it is necessary can significantly impact your ability to manage your personal affairs and protect your interests. Many Ontarians underestimate the importance of establishing a Power of Attorney until circumstances highlight their necessity. Here's an informative guide explaining exactly what a Power of Attorney is, the types available in Ontario, and why having one is so beneficial. 

What Exactly is a Power of Attorney? 

A Power of Attorney is a legal document where you (the "grantor") appoint another person (the "attorney") to make decisions on your behalf should you become incapable of managing your own affairs or unable to make certain decisions. Generally speaking, Powers of Attorney are used for managing various aspects of life -particularly finances, property, and personal care decisions - when illness, injury, or absence prevents you from acting independently. 

In Ontario, Powers of Attorney are primarily governed by two statutes: 

• The Substitute Decisions Act, 1992 (SDA): sets the legal standards and procedures for Powers of Attorney. 

• The Health Care Consent Act, 1996 (HCCA): outlines how medical and personal care decisions are made for individuals incapable of deciding themselves 

Types of Powers of Attorney in Ontario 

Although Powers of Attorney may be used in many situations, in Ontario, there are two main types, each serving distinct purposes: 

1. Power of Attorney for Property 

This type allows your appointed attorney to manage your financial affairs, including paying bills, banking, managing investments, buying or selling property, and ensuring your assets are protected. 

• It can take effect immediately upon signing, or you can specify it to only come into force under particular circumstances, such as your incapacity. 

• It is advisable to appoint someone reliable, financially prudent, and trustworthy. 

2. Power of Attorney for Personal Care 

This type addresses your personal healthcare and living decisions, granting your attorney authority to make medical treatment decisions, housing arrangements, diet and clothing choices, and similar personal care matters if you are incapable. 

• It only becomes effective when you are deemed incapable of making these decisions yourself. 

• Your appointed attorney must consider your previously expressed wishes, values, and beliefs regarding healthcare and personal care when making decisions on your behalf​. 

Why is Having a Power of Attorney Important in Ontario? 

Without a Power of Attorney, if you become unable to manage your affairs, your loved ones may face considerable difficulties, often leading to expensive and stressful court proceedings to appoint a guardian. 

Here are some key reasons why you should establish a Power of Attorney: 

Protection of Your Interests and Assets 

Without a Power of Attorney for Property, managing your assets during incapacity can be problematic. Your bills may remain unpaid, your investments unmanaged, and your property decisions may stall, possibly leading to financial losses or complications. 

Control Over Medical Decisions 

A Power of Attorney for Personal Care ensures your health and personal preferences are respected. Without one, healthcare decisions may be made by someone you would not have chosen, potentially overlooking your personal values and wishes. 

Avoidance of Court Proceedings 

Many people mistakenly assume that family members automatically have the legal authority to manage financial or personal care decisions if someone becomes incapable. This is not the case in Ontario. Without a valid Power of Attorney, your family or friends will typically need to apply to the court to be appointed as your guardian - a process that is often expensive, time-consuming, and stressful. Having a properly drafted Power of Attorney ensures your loved ones can step in if needed, without the burden of court involvement. 

Maintaining Family Harmony 

Clearly outlining your wishes through a Power of Attorney can prevent family disagreements about your care or financial management. It ensures that decisions are made in line with your expectations, reducing the likelihood of disputes. 

Practical Examples in Ontario 

Consider John from Windsor, who suffered a sudden illness and became incapable of managing his finances. Without a Power of Attorney, John's family was unable to access his bank accounts, pay his mortgage, or manage his investments. This led them to seek an expensive guardianship order from the courts. Had John prepared a Power of Attorney for Property, these difficulties could have been entirely avoided. 

Likewise, imagine Sarah from Amherstburg, who lost capacity due to an accident. She had previously appointed her daughter through a Power of Attorney for Personal Care. Her daughter, familiar with Sarah’s personal beliefs and preferences, could confidently make healthcare decisions, ensuring Sarah's values were respected and eliminating potential family conflicts about her medical care. 

Key Takeaways 

• A Power of Attorney is a legal document enabling someone else to act on your behalf if you're unable to. 

• Ontario has two main types: Power of Attorney for Property and Power of Attorney for Personal Care. 

• Without a Power of Attorney, managing your financial affairs or healthcare can become complicated and burdensome for your family. 

• Having these documents in place can help avoid costly and stressful legal proceedings and family disagreements. 

Contact Mariotti Law Group for Your Power of Attorney Needs 

If you have questions or would like assistance in preparing your Power of Attorney, Mariotti Law Group has extensive experience in guiding clients through this critical process. Ensure peace of mind for you and your family by contacting us today. 

Ready to take control of your future? Contact Mariotti Law Group to schedule your personalized consultation with our experienced Ontario estate lawyers. 

Disclaimer: This article is for informational purposes only and does not constitute legal advice or create a solicitor-client relationship. For personalized advice, please consult Mariotti Law Group directly.