Power of Attorney
Power of Attorney is also referred to as:
- POA or P.O.A.
- Ordinary Power of Attorney
- Enduring Power of Attorney
- Continuing Power of Attorney
What is a Power of Attorney?
A Power of Attorney form, also referred to as a POA, is a legal document
that gives one or more persons the authority to make financial, property, and
real estate decisions on your behalf. The person you assign powers to is called
your attorney; they may also be referred to as your attorney-in-fact,
representative, or agent.
Your attorney can be nearly any mentally capable adult of legal age.
They must not own or work at an extended care facility or nursing home in
which you are a resident. They must also not be involved in any type of
bankruptcy proceedings when you assign powers to them.
In Canada, every province and territory has its own laws concerning
specific provisions and restrictions relevant to a POA. This is why the
LawDepot POA form is automatically customized based on your province or
territory of residence.
What types of Powers of Attorney are there?
There are generally two types of Powers of Attorney used in Canada:
ordinary and enduring.
An ordinary Power of Attorney is valid while you are judged to be mentally capable.
Mental capacity is defined and determined by the laws of your province or territory of
residence, but generally means you understand how a Power of Attorney works and
can freely agree to its provisions.
An enduring Power of Attorney, sometimes referred to as a continuing Power of Attorney,
remains valid if you are ever incapacitated and unable to manage your own affairs.
For example, this condition could occur due to damage caused by a work or vehicle accident,
a debilitating illness, or a severe medical event like a stroke.
A POA form becomes invalid once a person dies. When this occurs, the executor
identified in the deceased’s Last Will and Testament is given control over the
disbursement of the estate.
Who can you give powers to in a POA?
Powers can be given
to your spouse, a family member, a trusted friend, a professional such as a lawyer
or accountant, or any other capable adult. The person you assign powers to has the
right to refuse, so you should always discuss your plans with the person you want to
give powers to before proceeding.
You can choose to give Power of Attorney to more than one person, and specify
that your attorneys must all agree before taking action on your behalf. Alternatively,
you can make it so your attorneys can act independently of each other.
You can also identify an alternate attorney who is able to act for you if the
original attorney is unable or unwilling to do so.
What actions can my attorney take on my behalf?
Your attorney can generally perform all of the personal financial actions you
are able to. They can do your banking, purchase or sell your real estate, and sign
cheques from your accounts. Your POA stipulates that your personal representative
must act in your best interests, keep records of all actions taken on your behalf,
and keep your finances and property separate from their own.
You can choose to place restrictions on your POA in order to limit the attorney's
actions to specific areas of your finances, such as a certain piece of real estate or
a specified business investment.
What actions can't be performed by my attorney?
Your attorney can't make medical decisions for you. If you want to put that type
of provision in place, consider creating a Health Care Directive
or a Living Will,
also known as a Personal Directive or Power of Attorney for Personal Care.
Your attorney cannot create a new Last Will and Testament
for you, or alter your existing Will. They also can’t create a new POA on your behalf and assign it to
When should I have a Power of Attorney?
You should consider making a POA form for these situations:
- You are going to vacation in another country for the winter.
- You want to ensure someone you trust has control over your affairs.
- You have a medical condition which could impact your mental fitness.
- Your job requires you to travel out of country for extended periods.
- You own a business and are concerned about its operation in the event of your absence.
- You want to set very specific limits on how your finances and property are
handled if you are ever incapacitated.
Forms related to Power of Attorney