General Power of Attorney

The Powers of Attorney Act has only three sections.  This Act governs general Powers of Attorney but without imposing formality on the document.  The general Power of Attorney contemplated by this Act does not survive the incapacity of the grantor.  The language of the Powers of Attorney Act refers to the “donor” which is different from that of the Substitute Decisions Act (“SDA”) which refers to the giver of the Power of Attorney as the “grantor.”  This Act does not set out any of the formalities dealing with a prescribed form, validity, or execution requirements, as does the SDA.[1]

A general Power of Attorney, if coupled with an interest, in other words, if adequate consideration is given, and if the Power of Attorney was given for the purposes of securing a benefit to the donee/grantee, is not revoked by death, incapacity or bankruptcy.

Continuing Power of Attorney for Property

A Continuing Power of Attorney for Property (“CPOAP”) is defined under the SDA as a “…continuing power of attorney if,

• it states that it is a Continuing Power of Attorney; or,
• it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property.”^[2]

A CPOAP drafted in accordance with the SDA may survive the mental incapacity of the grantor,^[3] and this is why the terminology “continuing” is used.

The CPOAP is effective immediately upon its being signed unless there is a provision, or triggering event in the document directing that it will come into effect in accordance with a specified date or event.  For instance, incapacity may be the specifying event.  If the Power of Attorney specifies that the power does not become effective until incapacity, there should be a determining event, failing which the SDA offers guidance.^[4]

The SDA provides guidelines for resignation,^[5] revocation,^[6] and termination of a Power of Attorney.^[7] The execution requirements of a CPOAP include that it be executed in the presence of two witnesses, each of whom shall sign the Power of Attorney as a witness and cannot be: the attorney or attorney’s spouse, 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 of age.^[8]

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[1] Ibid. 

[2] Substitute Decisions Act, supra note 9, at s. 7(1).

[3] Ibid at s. 7(1) and s. 14.  Note:  Powers of Attorney for Property made under the Power of Attorney Act prior to April 3, 1995, may survive the grantor’s incapacity if specifically provided.

[4] Ibid at s. 9.

[5] Ibid at s. 11.

[6] Ibid at s. 12(2).

[7] Ibid at s. 12(1).

[8] Ibid at s. 10.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.