- There are two distinct documents: one for property, one for personal care.
- A power of attorney has no effect after death, when the will and estate trustee take over.
- A continuing power of attorney for property survives incapacity, which is the whole point of it.
- Without one, someone must apply for guardianship, which is slower, costlier and supervised.
Two documents, two domains
A continuing power of attorney for property authorises someone to manage finances and property, banking, bills, investments, real property, and tax filings.
A power of attorney for personal care authorises someone to make decisions about health care, housing, nutrition, clothing, hygiene and safety.
They are separate documents and can name different people, which is often sensible: the qualities that make someone good with money are not the ones that make them good at a hospital bedside.
What “continuing” means
At common law an ordinary power of attorney ends if the grantor becomes mentally incapable, precisely when it is most needed.
A continuing power of attorney for property is expressly stated to continue despite incapacity. It must say so, and the statutory requirements must be met.
This is the central purpose of the document. A power of attorney that is not continuing provides no protection against the situation most people are worried about.
When each takes effect
A continuing power of attorney for property can take effect immediately on signing, or can be drafted to take effect only on incapacity.
Immediate effect is more practical, because a springing power requires proof of incapacity before the attorney can act, which introduces delay at a difficult moment. It also requires more trust, since the attorney could act at any time.
A power of attorney for personal care operates differently: it takes effect when the grantor is incapable of making the particular decision. Capacity is decision-specific, so a person may be capable of choosing where to live and incapable of consenting to a specific treatment.
The attorney’s duties
An attorney for property is a fiduciary. The obligations are substantial: act diligently and honestly and in good faith for the grantor’s benefit; keep the grantor’s property separate from their own; keep accounts of all transactions; consult the grantor where possible and their family; and, importantly, make expenditures for the grantor and their dependants rather than for the attorney.
Gifts and loans to others, including to the attorney, are tightly restricted.
The record-keeping obligation is real and often ignored. An attorney can be required to pass accounts before the court, and an attorney who cannot account for what happened to the money is in a difficult position.
An attorney for personal care must act in accordance with any wishes expressed by the grantor while capable, and otherwise in the grantor’s best interests.
What happens without one
If a person becomes incapable without a power of attorney, family members cannot simply step in. Banks will not take instructions from a spouse or an adult child on that basis.
Someone must apply for guardianship, which involves a court application supported by capacity assessments, a management plan, and ongoing accountability. In the interim the Public Guardian and Trustee may become involved.
It is slower, considerably more expensive, and more intrusive than a document that could have been signed in an afternoon.
Choosing an attorney, and misuse
The attorney should be trustworthy, competent with the relevant subject matter, willing to act, and likely to be available. Naming multiple attorneys requires deciding whether they act jointly, which is safer but can deadlock, or jointly and severally, which is more practical but reduces oversight.
Financial abuse under a power of attorney is a real and under-reported problem, most often by a family member. Safeguards worth considering include requiring joint attorneys for large transactions, naming a different person to receive periodic accounts, and being specific in the document rather than granting unlimited authority by default.
Common questions
Does a power of attorney let someone make a will for me?
No. Will-making is personal and cannot be delegated. An attorney also cannot change beneficiary designations except in narrow circumstances.
Can I revoke a power of attorney?
Yes, while capable, by a written revocation delivered to the attorney and to anyone relying on it, such as a bank.
Does it still work after death?
No. Authority ends at death, and the estate trustee under the will takes over from that moment.
Is a power of attorney from another province valid here?
It may be recognised, but institutions frequently resist documents in unfamiliar form. Anyone with assets or residence in Ontario should generally have an Ontario document.
Contacting us does not create a solicitor-client relationship. Please do not send confidential information until we have confirmed we can act for you. We aim to reply within 2 business days. Sending this form does not meet any court deadline or limitation period.
If you or a child are in immediate danger, call 911. This form is not an emergency service and is read during business hours. Assaulted Women’s Helpline 1-866-863-0511, Talk4Healing 1-855-554-4325, both open around the clock.
