Law 2101
Tuesday March 11
Powers of Attorney, Wills and Estates Law
Powers of Attorney
• POA = legal document allowing one person to appoint another to act for them
• POAs are valid only during the grantor’s life (the person signing the POA)
o The grantee is the person who has been appointed
Two Kinds of POAs:
1. Continuing Power of Attorney
• Allows the “attorney” (not a lawyer, the person appointed) to manage the
grantor’s property and make financial decisions on the grantor’s
behalf
• eg. someone may appoint someone to help them with their banking, pay
bills, buy and sell assets (a business, a house)
• The attorney steps into your shoes to look after your affairs
• Source of Law: Substitute Decisions Act, 1992, S.O. 1992, c. 30, Part 1
(Page PW-2 in your book)
• The continuing POA may be in the “prescribed form” (the normal form for a
POA, but it is not required)
• Effect:
o A CPOA authorizes the attorney(s) to do anything that the grantor
can do with respect to property
• Limitations:
o Grantor can put restrictions in the CPOA
They can put limits on their authority (eg. a time constraint
for only one year, to be the attorney for the sole purpose of
selling their house)
o Attorney cannot make a will (it has to be done by yourself
personally – you can’t appoint someone to do it for you)
o Example Restrictions (you can add these):
The CPOA cannot make any gifts or loans to your relatives
or friends
The CPOA cannot make changes to life insurance and
RRSP beneficiaries
• Requirements to create CPOA:
1) Grantor must be 18+
2) Attorney(s) must be 18+
3) Grantor must have capacity
• They must have the mental capacity to give power of
attorney
• A person is capable of giving a CPOA if he or she:
o a) knows what kind of property he or she has and
its approximate value; o b) is aware of obligations owed to his or her
dependents; (eg. children)
o c) knows that the attorney will be able to do on the
person’s behalf anything in respect of property
that the person could do if capable, except make a
will, subject to the conditions and restrictions set out
in the power of attorney;
o d) knows that the attorney must account for his or
her dealings with the person’s property;
o e) knows that he or she may, if capable, revoke the
continuing power of attorney;
o f) appreciates that unless the attorney manages the
property prudently its value may decline; and
o g) appreciates the possibility that the attorney could
misuse the authority given to him or her.
• It is up to the lawyer to determine whether the person has
capacity (to pick up whether there is something wrong) –
they may ask to have a note from a doctor
• If you don’t have capacity (eg. you have Alzheimer’s), you
can’t sign a CPOA, so your family would have to apply to the
courts to have a guardian appointed
4) There must be two witnesses to execution
5) No particular form required, but must expressly state that it is a
CPOA; OR express intention that authority may be exercised during
the grantor’s incapacity to manage property
• eg. a woman has Alzheimer’s, but has given POA to her
child to look after her banking for her. Because she has
Alzheimer’s, a doctor says she has an incapacity to manage
her affairs.
• A CPOA is valid if at the time of execution, the grantor had the capacity to
make a CPOA (even if the grantor is incapable of managing property)
• A validly executed CPOA continues to be valid even after the grantor
becomes incapable of making a CPOA (it can’t be revoked unless a court
does so)
o You need capacity to sign a power of attorney and to revoke it
• When CPOA comes into effect:
o By default, it comes into effect upon signing/execution
o A CPOA can also come into effect on a specified date or when a
specified contingency happens (when a doctor says you are
‘incapable’ of managing property, if specified)
• Termination of a CPOA happens upon:
o Grantor’s death
o Attorney’s death (if there is no alternate appointed)
o Resignation of attorney (if no alternate)
o Attorney becomes incapable of managing property o Grantor executing a new CPOA (the old one becomes void)
o Grantor revoking CPOA
o Court appointing a guardian for the grantor
• Assuring that the POA doesn’t abuse their power
o You need complete trust in the person appointed
o List all of the incapable person’s assets when they took over the
estate
o Ongoing list of assets acquired and disposed of after appointment
o Ongoing list of all mone
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