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POA Weekly – Week 18: What areSome Potential Jurisdictional IssuesPertaining to Powers of Attorney?

The Substitute Decisions Act  addresses potential jurisdictional issues in sections 85 and 86.  The requirements for formal validity of powers of attorney are similar to the formal requirements for the validity of a Will, where the donor resides in another jurisdiction.

Every jurisdiction has different requirements, and so a power of attorney made in Ontario may not be adequate to deal with personally, or, more importantly, real property, in another jurisdiction.

It is of utmost importance that the lawyer is informed and knows whether the donor has property in other jurisdictions.  The discussion with the donor must be that the donor should have the POA, whether for personal care or property, reviewed in the jurisdiction where property is owned, or where he might spend sufficient time that a POA for Personal Care would be wise.  Lastly, one may have multiple powers of attorney for various jurisdictions, as long as all of the lawyers take very great care to ensure that the documents do not revoke the document of other jurisdictions.

Ontario Continuing Powers’ of Attorney for Property would not be adequate for example, to deal with real property in Florida.  Since many clients do own real property in Florida, a recommendation to these clients that they have a Florida POA which survives incapacity and which is adequate to deal with Florida real and personal property, and which does not revoke the Ontario POA would be prudent.

An example: Elaine, who is spending a year in Australia is contemplating power of attorney planning.  Since her health is not good, it was recommended that she see a lawyer in Australia and have a document prepared which is the Australian equivalent of a POAPC, and which names her son in Australia as the attorney.  She was reminded to ensure that this does not revoke her Ontario POAPC which names her son in Ontario as her attorney for personal care.

The following are sections 85 and 86 of the Ontario Substitute Decisions Act which provide for formalities of execution, and section 86 provides that foreign orders for guardianship can be “resealed” in Ontario, provided that the foreign jurisdiction was a province or territory of Canada or a “prescribed” jurisdiction:

  1. (1) Conflict of laws, formalities – As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,
    • the power of attorney was executed;
    • the grantor was then domiciled; or
    • the grantor then had his or her habitual residence.

(2)       Internal Law – For the purpose of subsection (1), “internal law”, in relation to any place, excludes the choice of law rules of that place.

[. . .]

(5)       Alteration in law – In determining for the purposes of this section whether or not the execution of a continuing power of attorney or power of attorney for personal care conforms to a particular law, regard shall be had to the formal requirements of that law at the time the power of attorney was executed, but account shall be taken of an alteration of law affecting powers of attorney executed at that time if the alteration enables the power of attorney to be treated as properly executed.

(6)       Application – This section applies to a continuing power of attorney or power of attorney for personal care executed either in or outside Ontario.

  1. (1) Foreign orders – In this section, “foreign order” means an order made by a court outside Ontario that appoints, for a person who is sixteen years of age or older, a person having duties comparable to those of a guardian of property or guardian of the person.

(2)  Resealing – Any person may apply to the court for an order resealing a foreign order that was made in a province or territory of Canada or in a prescribed jurisdiction.

(3)  Certificate from foreign court – An order resealing a foreign order shall not be made unless the applicant files with the court,

    • a copy of the foreign order bearing the seal of the court that made it or a copy of the foreign order certified by the registrar, clerk or other officer of the court that made it; and
    • a certificate signed by the registrar, clerk or other officer of the court that made the foreign order stating that the order is unrevoked and of full effect.

(4)  Effect of resealing – A foreign order that has been resealed,

    • has the same effect in Ontario as if it were an order under this Act appointing a guardian of property or guardian of the person, as the case may be;
    • is subject in Ontario to any condition imposed by the court that the court may impose under this Act on an order appointing a guardian of property or guardian of the person, as the case may be; and
    • is subject in Ontario to the provisions of this Act respecting guardians of property or guardians of the person, as the case may be.

The term “resealing” is an antiquated term that essentially means “confirmation” of an order issued in a foreign jurisdiction. Under section 86 of the Substitute Decisions Act, the Ontario court will confirm a foreign guardianship order of any Canadian province or territory and will also “reseal” any foreign guardianship order of any “prescribed jurisdiction”.

The case of Cariello v. Father Michele Perrella,[1] examined section 86 of the Substitute Decisions Act. The case raised the question of which jurisdiction had guardianship authority over a retired Roman Catholic Priest who maintained both Italian and Canadian connections. The applicant argued Italian courts had jurisdiction to deal with the priest’s incapacity and argued that the Ontario court should decline jurisdiction on the basis of section 86 of the Substitute Decisions Act. However, the legislation had yet to prescribe any other country, including Italy, as a “prescribed jurisdiction”. The court concluded that it seemed that “unless and until Ontario creates a list of prescribed jurisdictions” there is simply no legislative basis on which the court could apply section 86.[2]

[1] Cariello v. Father Michele Perrella, 2013 ONSC 7605.

[2] Ibid at para. 48.

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.

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