1. Introduction

What can be done when a power of attorney for personal care or a continuing power of attorney for property is defective because the power was not signed in the presence of two witnesses and therefore it is also not signed by witnesses? Those are the requirements imposed by the Substitute Decisions Act.[1] The issue was raised, apparently for the first time in McDonald v McDonald.[2] It was answered by reference to the validating powers in the Act discussed below (referred to as ‘curative provisions’ in the case).

2. Facts

The respondent, Ann McDonald, completed Government of Ontario Powers of Attorney for property and personal care on July 24, 2018, and signed them on that date. Unfortunately, she did not sign them in the presence of two witnesses. However, on July 29, 2018, two family friends signed both documents in Ann’s presence. Ann then changed the date by changing the ‘4’ in ‘24’ to a ‘9’ so that the date became ‘29’ but she did not initial the change.

Ann named her only child, Nichole McDonald, and her sister Carrie joint attorneys for personal care. She also named Nichole as her primary attorney with Carrie as ‘either her joint or alternate attorney for property’. Carrie and her sister Doreen are Ann’s sole siblings.

Ann is now 77 years old, lives in a long-term care facility and suffers from dementia. Her attending physician has written a letter stating that Ann is incapable of making decisions regarding her health care and is also incapable of making financial decisions.

Nichole brought an application for a declaration that both powers are valid and comply with the requirements of the SDA. Alternatively, if they do not so comply, she asks the court to find that the powers are nonetheless valid  and effective under the SDA’s validating provisions.

Carrie renounced any claim to act as attorney[3] or guardian. Both she and her sister consented to the application. Ann, her sisters, and the Public Guardian and Trustee are the respondents to the application.

3. Analysis and Judgment

Justice Kurz held rightly that the two powers of attorney were not formally valid under the SDA because the grantor did not sign them in the presence of two witnesses who then signed the documents, as required by ss 10(1) and 48(1) of the Act.

His Honour then considered the effect of the validating provisions of the Act. Section 10(4) of the SDA provides in respect of continuing powers of attorney for property:

A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.

Similarly, with slightly different wording, in respect of powers of attorney for personal care, section 48(4) provides:

A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor’s interests to do so.

Since there are no cases that discuss these provisions counsel for the Applicant argued that the court can apply the approaches to other situations in related cases by analogy. Thus counsel referred to the ‘wills exception’ used in the context of the formation of a trust deed to allow the communication between solicitor and client to be admitted.[4] She also argued that the court can, by analogy apply the inquisitorial jurisdiction of the court in probate cases and the special responsibility the court has towards the testator in such cases.[5] And she argued that the court can, by analogy, apply cases holding that when a testator presents her will to people to witness it after she has signed it, that act constitutes an acknowledgement of her signature required by section 4(2)(b) of the Succession Law Reform Act.[6]

Justice Kurz took note of the above cases and held that the key point of section 10(4) and 48(4) is the interest of the grantor (and the grantor’s dependants in the case of a continuing power of attorney for property), ‘rather than a simple or formalistic adherence to technical requirements’. He found that these provisions permit the court to give effect to the grantor’s true intentions. He also found that Ann acknowledged her signature to the powers of attorney when she asked the two witnesses to sign them. He held, ‘In doing so, she can be said to have ratified her previous signature within the context of demonstrating her intention to be bound by their [i.e., the powers of attorney] terms and to align the date of her signature with that of the witnesses’. Consequently, his Honour held that it was in Ann’s best interests to find the powers of attorney to be valid, effective, and binding.

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[1]    SO 1992, c 30, ss 10(1) for property and 48(1) for personal care (‘SDA’).

[2]    2025 ONSC 5536.

[3]    Not ‘power of attorney’ please!

[4]    Citing Geffen v Goodman Estate, [1991] 2 SCR 353, paras 58 and 63, per Wilson J.

[5]    Citing Otis v Otis (2004), 7 ETR 3d 221 (SCJ), paras 23-26, per Cullity J, and Neuberger Estate v York, 2016 ONCA 191, para 68, per Gillese JA.

[6]    RSO 1990, c S.26, and citing Lavallée et al c Gravelle Desormeau et al, 2024 ONSC 6794, para 19, per Flaherty J.