Subsection 7(2) of the Substitute Decisions Act, 1992 speaks of a continuing power of attorney and contains the following language:
The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will. (Emphasis supplied.)
I don’t know how often I’ve heard lawyers and judges repeat this language. It’s become a kind of mantra, but what the writers and speakers emphasize is the ability to do all, except make a will. What they gloss over is the fact that the subsection clearly speaks of two concepts: (a) a power of attorney; and (b) an attorney. You would think that they, having been trained in statutory interpretation, would have noticed that immediately. It’s clear as a bell. Indeed the distinction between the two concepts is obvious from the statute as a whole.
But what is the consequence of the failure to recognize the distinction? It is that lawyers and judges very casually and with an assumed authority (as if it were an incontestable verity) say things like: “Jill is Harry’s power of attorney”! You come across this wrong usage in facta, opinions, and reasons for judgment all the time.
Why then do many lawyers and judges (!) speak or write only about a power of attorney and fail to mention the attorney? Actually, that’s not quite correct. They do mention the attorney, but by an incorrect moniker. They call her a “power of attorney”, as we’ve just seen. Oy vey! How can that be? And what then has become of the power of attorney, I mean the thingy that appoints the “attorney” according to the statute? Oh, sorry, I mean what happened to the power of attorney that appoints the “power of attorney”?
Do you see the problem you’ve created for yourselves? You’re using the same name for two discrete concepts. As lawyers you are supposed to communicate clearly, but you are communicating decidedly imprecisely.
I’ve railed against this execrable usage on a number of occasions, but my raillery (i.e., good-humoured ridicule) seems to have fallen on deaf ears. I feel like a voice crying in the wilderness where no one hears me. But let me try once more in this blog post. The advantage of blog posts is that people actually read them.🙂
You see, calling an “attorney” a “power of attorney is truly an egregious solecism (i.e., a terrible blunder). A power of attorney (whether of property or of the person, it matters not) is a document that appoints a person as attorney and endows her with certain powers (except the power to make a will, of course).
To call the attorney a “power of attorney” calls to mind the ludicrous image of a document with stick arms and legs prancing about and with a silly grin on its face. Surely only the fecund and fevered imagination of a Mary Wollstonecraft Shelley, who conceived the mad scientist, Victor Frankenstein, could have engendered such a monstrosity.
An even worse problem is that by your incorrect terminology you have encouraged the hoi polloi, your clients and the general public, to do the same. Unlike you, they cannot be faulted, at least now with the same severity. But they can be re-educated. By you, of course. Doing so is a public service and, as public servants, we have an obligation to educate the public, no?
So, my dear friends, I implore you, for my peace of mind and pro bono publico, please distinguish carefully between a power of attorney and an attorney.
And therefore, please repeat the following mantra after me: “I shall never, ever again call an attorney a power of attorney”. And you will have my undying thanks.
I am greatly indebted to Ken Raymond for the following diagram. I hope that it help you to remember the correct usage.
 S.O. 1992, c. 30