As we know, there are guidelines in place with respect to the execution of a Continuing Power of Attorney. While it is easy to fixate on the capacity of the grantor and the form of the instrument itself, the Substitute Decisions Act also sets forth stringent provisions with respect to the manner of execution, particularly concerning witnesses to the execution.
Per Section 10(1) of the Substitute Decisions Act (the “SDA”), a Continuing Power of Attorney shall be executed in the presence of two witnesses and they both shall sign the document as witnesses. Section 10(2) of the SDA specifies who shall not be a witness to the Continuing Power of Attorney, failing to comply with which would render the Continuing Power of Attorney ineffective.
The witnesses to a Continuing Power of Attorney shall not be:
- The attorney or the attorney’s spouse or partner.
- The grantor’s spouse or partner.
- A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.
- A person whose property is under guardianship or who has a guardian of the person.
- A person who is less than eighteen years old. 1992, c. 30, s. 10 (2).
In the event that you find yourself in a position where the witnesses to a Power of Attorney have not met the requirements of the SDA, it is still possible to uphold its validity provided it can be shown that it is in the best interest of the grantor.
Section 10(4) of the SDA, permits any person to apply to the Court to have the Continuing Power of Attorney declared effective, despite the above guidelines not being followed. The caveat of course being that the Court be satisfied that the non-compliant Continuing Power of Attorney in question, which is in breach of the guidelines, actually be in the best interests of the grantor and their dependants, if any.
While there is very little if any case law to support upholding the validity of a Power of Attorney on the basis of section 10(4) of the SDA, we ought to be cognizant of its existence and how it could benefit a grantor in a situation where the proper steps were not taken. In such a situation, it is comforting to know that the court has the discretion to override what could be a disastrous mistake.
 Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 10(2).