Fillable Printable Power of Attorney for Property and Personal Care - Ontario

Power of Attorney for Property and Personal Care - Ontario

Powers of Attorney

This booklet contains forms for

Continuing Power of Attorney for Property

and

Power of Attorney for Personal Care

Ministry of the Attorney General

NOT FOR SALE

Table of Contents

Ontario's Power of Attorney Laws.......................................................... 1

Some Important Definitions..................................................................... 2

Continuing Power of Attorney for Property

..................................................4

Decisions About Property ...................................................................................

Part 1 - Appointing Your Attorney .....................................................................4

Part 2 - Joint or Separate Attorneys ....................................................................5

Part 3 - Substitute Attorney.................................................................................6

Part 4 - Authority of Attorney(s) ........................................................................6

Part 5 - Conditions and Restrictions ...................................................................6

Part 6 - Date of Effectiveness .............................................................................7

Part 7 – Compensation........................................................................................7

Part 8 - Your Signature .......................................................................................8

Part 9 - Witness Signatures .................................................................................8

Additional Guidelines .........................................................................................8

Continuing Power of Attorney for Property Form

Power of Attorney for Personal Care..........................................................9

Decisions About Personal Care ..........................................................................9

Part 1 - Appointing Your Attorney .................................................................. 10

Part 2 - Joint or Separate Attorneys ................................................................. 11

Part 3 - Substitute Attorney.............................................................................. 11

Part 4 - Authority of Attorney(s) ..................................................................... 12

Part 5 - Instructions, Conditions and Restrictions ...........................................

Part 6 - Your Signature .................................................................................... 13

Part 7 - Witness Signatures .............................................................................. 14

Additional Guidelines ...................................................................................... 14

Power of Attorney for Personal Care Form

NOT FOR SALE

Ce document, intitulé “Les procurations”, est également disponible en

français. Pour en obtenir un exemplaire, veu illez écrire à l’adresse

Bureau du Tuteur et Curateur public

Ministère du Procureur général

bureau 800

595 rue Bay

Toronto ON M5G 2M6

Queen’s Printer for Ontario, 2012

This is a reprint done in 2012

These forms are provided by the Government of Ontario.

ISBN 978-4249-6183-2 [PRINT]

ISBN 978-1-4249-6184-9 [PDF]

Ontario's Power of Attorney Laws

This booklet contains instructions and forms for a Continuing Power of Attorney for

Property and a Power of Attorney for Personal Care.

By making powers of attorney, people can plan ahead and be confident that their plans

will be carried out.

The role of government is to act as substitu te decision-maker of last resort only for

people who have no one else to make decisions on their behalf. If there is no power of attorney, a

family member or friend may have to apply to be appointed as guardian.

Powers of attorney which were properly made under previous laws of Ontario remain

legally valid.

The forms for a Continuing Power of Attorney for Property and a Power of Attorney for

Personal Care contained in this booklet were revised on March 29, 1996 in accordance with

amendments to the Substitute Decisions Act, 1992. Former versions of these forms may be used

and will be valid if properly completed and witnessed.

If you have questions after reading the instructions, you may wish to seek advice from a

legal professional.

NOT FOR SALE

Some Important Definitions

This list of definitions will help you understand some of the unfamiliar legal or technical terms.

Assessor

Assessors are persons who are authorized to conduct an assessment of a person's mental capacity

for certain purposes such as appointing a guardian for property without going through the court

process. They have appropriate professional backgrounds and have successfully completed a

training course in capacity assessment. They are independent of the government.

Continuing Power of Attorney for Property

A Continuing Power of Attorney for Property is a legal document in which a person gives

someone else the legal authority to make decisions about their finances. . The person who is

named as the attorney does not have to be a lawyer. The power of attorney is called “continuing”

because it can be used after the person who gave it is no long er mentally capable to make the

financial decisions themselves. Some people use the word “durable” which means the same as

"continuing".

Guardian of Property

A guardian of property is someone who is appointed by the Public Guardian and Trustee or the

court to look after an incapable person’s property. Both the guardian and the incapable person

must be at least 18 years old. A guardian is different from an attorney; an attorney is chosen by

the individual, before becoming incapable, to act on their behalf, while a guardian is appointed

after incapacity. A guardian can be a statutory guardian or a guardian appointed by the court.

Guardian of the Person

A Court may appoint a guardian of the person to make decisions on behalf of an incapable

person in some or all areas of personal care, usually because there is no power of attorney for

personal care. The guardian must be at least 16 years old.

Incapacity

Under the Substitute Decisions Act, 1992, incapacity refers to mental incapacity. It means that

the person is unable to understand information that is relevant to making a decision or is unable

to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

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Partners

Two people who have lived together for at least one year and who have a close relationship

which is of primary importance in both their lives are considered to be partners.

Personal Care

Personal care includes health care, nutrition, shelter, clothing, hygiene, and safety.

Power of Attorney for Personal Care

A Power of Attorney for Personal Care is a legal document in which one person gives another

person the authority to make personal care decisions on their behalf if they become mentally

incapable.

Property Management

The Substitute Decisions Act, 1992 refers to decisions about property m anagement and powers

of attorney for property. “Property” means finances, which include any type of financial

decision or transaction that a person would make in the course of managing his or her income,

spending, assets, and debts. For example, it could include budgeting expenses and paying bills,

doing tax returns, safeguarding valuables, selling real estate, or making loans.

Public Guardian and Trustee

The Public Guardian and Trustee’s role is to ac t as substitute decision- maker of last resort on

behalf of those mentally incapable people who have no one who is willing or able to act on their

behalf.

Statutory Guardian

A statutory guardian is a person who is appointed to act on another person’s behalf without going

to court. Statutory guardianship applies only to property or finances; there is no statutory

guardianship for personal care. A statutory guardian can be the Public Guardian and Trustee

(PGT) or someone approved by the PGT to replace the PGT as statutory guardian.

NOT FOR SALE

Continuing Power of Attorney for Property

This booklet contains step by step instructions for completing

the enclosed Continuing Power of Attorney for Property form.

(Made in accordance with the Substitute Decisions Act, 1992)

Decisions About Property

If you become mentally incapable, who will pay

your bills and your taxes? Who will look after your

bank accounts? Who will manage your real estate and

investments? The person you choose as your

“attorney” for property will take care of these things

for you. (The word “attorney” does not mean

“lawyer.”) The attorney can be a relative, friend, or

someone else.

You may use the form contained in this booklet to

appoint a person of your choice to make decisions

about your property and manage your finances on

your behalf. This may include doing things such as

signing documents for you, paying your bills, or

selling your home. This power of attorney will allow

the person you appoint to manage your financial

affairs even if you become mentally incapable. The

person you appoint is called your “attorney for

property.” You may name more than one attorney if

you wish.

If you have already made a power of attorney for

property that continues to be effective after you

become mentally incapable, you do not need to make a

new one.

If you wish, you may use another form or make your

own, but if you do this, make sure that it meets the

legal requirements necessary under the Substitute

Decisions Act to make a valid continuing power of

attorney.

It’s important to know that you are not required to

appoint an attorney for property. This is your choice.

Giving a power of attorney to someone is a

very serious matter. You are giving the person you

appoint significant power over your property. There is

always a risk that your attorney could misuse this

power. If you have any doubts about the motives or

ability of the person you are considering - or are under

any pressure from your proposed attorney to pick him

or her - do not appoint that person.

Before you decide, you may want to talk with your

family or close friends. Although you are not required

to consult a lawyer in order to make a legally binding

power of attorney, it is a good idea to do so.

Consulting with other expert advisors is also a good

idea, providing they are impartial and concerned only

with your best interests.

This document includes guidelines designed to help

you complete this power of attorney. They do not

cover every option available in the Substitute

Decisions Act. They are not legal advice. Some legal

terminology in the statute has been described here in

simpler words to make it easier to understand.

The guidelines also point out some of the reasons why

you may or may not wish to make certain choices. But

remember, all decisions are up to you.

Refer to the enclosed Continuing Power of Attorney

for Property form as you review the following

instructions.

Part 1:

APPOINTING YOUR ATTORNEY

Read this section carefully before you begin to

complete the power of attorney form.

To make a valid power of attorney, you must be 18

years of age or more and “mentally capable” of

giving a continuing power of attorney for property.

This form does not allow your attorney to make decisions about your personal care. If you wish to appoint an attorney for

your personal decisions you can make a separate document called a “ Pow er of A tt o rney for Personal Care.”

This means that you:

- know what property you have and its approximate

value;

- are aware of your obligations to those people who

depend on you financially;

- know what authority your attorney will have;

- know that your attorney must account for all the

decisions he or she makes about your property;

- know that, if you are capable, you may cancel your

power of attorney;

- understand that unless your attorney manages the

property prudently, its value may decline;

- understand that there is always the possibility that

your attorney could misuse the authority.

Consider who you want to appoint as your attorney for

property. You can choose anyone you want as your

attorney as long as he or she is 18 years of age or more.

Many trust companies are prepared to act as attorney

and charge a fee for this service. Some individuals

choose this option because they want an attorney who is

professional and impartial.

Talk to the person you wish to appoint and make sure

that he or she is willing to accept the responsibility

involved in being your attorney for property.

It is important to know that by making this power of

attorney, you revoke (cancel) any other continuing

power of attorney for property that you have made

before. If you have made such a power of attorney

before and you don’t want to revoke it, you should

consult with a lawyer so that he or she will make the

necessary changes to this form.

If you want more than one person involved in your

financial decisions, you can name more than one person

to be your attorney for property. But you are not

required to do so. On the other hand, you may decide

not to name more than one attorney if you’re concerned

about the possibility of disagreements or if you believe

it may be difficult for others to deal with more than one

person concerning your finances.

Please note that you cannot appoint the Public Guardian

and Trustee (PGT) as your attorney for property unless

the PGT agrees in advance in writing to act as attorney

for you.

Once you have decided who you want to appoint as

your attorney(s), write your name and the name of the

person(s) you are appointing in the space provided in

Part 1 of the power of attorney form which follows

page eight of these instructions.

Part 2:

JOINT OR SEPARATE ATTORNEYS

Fill out this part only if you have named more than one

attorney and you want your attorneys to be able to make

decisions separately, that is, without having to act

together.

You can name more than one person as your attorney

for property and/or personal care. If you do this, you

may decide whether they will share the job or divide

their responsibilities. Or, you could name one person as

your attorney and another person as a substitute or

backup who could step in if your first choice resigns,

gets sick or dies.

If you have appointed more than one attorney in this

form, the law will require them to make decisions

together unless you specifically give them permission to

act separately. You can give permission to act

separately by writing it down in this part of the form. If

you don’t do this, your attorneys will be required to act

together all the time.

There are some good reasons for giving your attorneys

the flexibility to make decisions separately. Think, for

example, about what would happen if one of your

attorneys was temporarily unavailable because of

sickness, vacation, or some other reason. If your

attorneys are allowed to act separately, this will not be a

problem.

On the other hand, you may decide not to give this

permission if you want to ensure that there is always a

“double-check” regarding the decision. You may also

wish to avoid the risk of inconsistent decisions that may

occur as a result of attorneys acting separately.

If you decide that your attorneys are going to make

decisions together, it’s a good idea to specify how

disagreements get resolved. You might say that in a

case of conflict, one attorney’s decision will override

the other’s. Otherwise, your attorneys might have to go

to Court and the judge will have to decide.

If you have named more than one attorney and you

want them to be able to act separately from one another,

write the words “jointly and severally” in the space

provided in Part 2 of the form. (“Jointly and severally”

is a legal term which means “together and separately.”)

If you don’t do this, your attorneys will be required to

make your financial decisions together at all times.

Part 3:

SUBSTITUTE ATTORNEY

(This part is

optional.)

It could happen that your appointed attorney may not

be willing or able to act on your behalf when the time

comes. Or something may happen after your attorney

has begun to make decisions on your behalf that

prevents him or her from continuing to act for you. In

either case, you could be left with no one to manage

your financial affairs. So you may wish to consider

naming a substitute attorney.

This is especially important if you have named only

one attorney. If you have named more than one

attorney, there is less reason to be concerned because

the remaining attorney can usually carry on if

something happens to the other. You may still want

to name a substitute, however, to replace the one who

cannot act. There is no guarantee that something will

not happen to your remaining attorney or you may

feel strongly that there should always be more than

one person involved in your financial decision-

making.

Your substitute attorney will have the same authority

and powers as the attorney he or she replaces.

If you choose to name more than one person to act as

your substitute attorney, they would have to make

decisions together unless you say otherwise by

writing in the words “jointly and severally” after their

names. (See Part 2)

To name a substitute attorney, complete Part 3 of the

enclosed power of attorney form.

Part 4:

AUTHORITY OF ATTORNEY(S)

This part of the form is very important. It tells your

attorney, and people who deal with him or her, the

types of financial decisions your attorney is allowed

to make on your behalf.

This part of the form gives your attorney(s) the

authority to make any kind of financial decision that

you could make yourself – except make a will. If you

wish to limit your attorney’s authority, you may do so

later in Part 5 of this form.

Part 4 of the form also states that the power of

attorney may be used even if you become mentally

incapable of making financial decisions. It makes it

clear that you want the power of attorney to

“continue” to be effective if this happens.

Part 5:

CONDITIONS AND RESTRICTIONS

(This

part is optional)

The law permits you to limit your attorney’s

authority. For example, you may limit your attorney

to transactions concernin g specific assets, such as

your bank accounts, or prohibit him or her from

dealing with a particular piece of property.

But think carefully before you limit the scope of

your attorney’s authority. If you become incapable

of making financial decisions and your attorney does

not have full authority, it may be necessary for your

attorney, a family member, friend or the Public

Guardian and Trustee to be appointed as your

guardian in order to manage the balance of your

property. In that case, a management plan must be

filed and security may be required.

Also, an unlimited continuing power of attorney

allows the attorney to end the involvement of the

Public Guardian and Trustee (PGT) if the PGT is

appointed as statutory guardian of property. A limited

continuing power of attorney would not do this;

therefore a legal application would be required for

that attorney to replace the PGT.

You can put other types of conditions and restrictions in

your power of attorney if you wish. Some examples of

such conditions and restrictions are:

 requiring your attorney to consult with specific

people (e.g. family members, financial advisors)

before certain decisions are made;

 specifying the types of investments your attorney

may or may not make;

 requiring your attorney to give priority to certain

people in making loans or gifts on your behalf;

 specifying how disagreements will be resolved if

you have named more than one attorney.

These are just some examples of the types of conditions

and restrictions you may want to think about. But

remember, you are not required to put anything in this

section.

Part 6:

DATE OF EFFECTIVENESS

This document will give your attorney legal authority as

soon as it is signed and witnessed unless you specify

otherwise in this form. This does not prevent you,

however, from looking after your own affairs while you

are still capable of doing so. In other words, your

attorney will not necessarily begin to manage your

financial affairs right away. You and your appointed

attorney may agree, for example, to leave this document

in a safe place or with a trusted third person, such as

your lawyer, accountant or other professional advisor.

You can give written directions to the third person

about when the power of attorney may be released to

the person you have appointed. You would continue to

manage your own financial affairs in the meantime.

This approach means that your attorney will not have to

go through formal procedures to prove to third parties,

such as banks and pension sources, that the power of

attorney has come into effect.

Alternatively, you may wish to exercise more control

over when the power of attorney may be used. You may

state in Part 5 that the document is only to come into

effect on a certain date or when something specific

happens. For example, you can say in this document

that it won’t take effect unless you become mentally

incapable of managing your property. If you place this

condition in your power of attorney, it is advisable to

give very specific directions about how your mental

incapacity is to be decided. You could, for example, say

that a letter from your doctor or another trusted person

which states that you are no longer mentally capable of

managing property is sufficient proof.

If you don't indicate how your mental capacity is to be

reviewed in your power of attorney, your attorney may

have to use some of your funds to pay for an assessor to

judge your capacity. An assessor is a person qualified to

make this decision.

If you do wish to restrict the circumstances in which the

power of attorney may be used, write this in Part 5.

But remember, your property will still belong to you

and must be managed by your attorney in your best

interests and in accordance with the law.

Part 7:

COMPENSATION

Your attorney(s) is entitled to take payment at a rate set

out in the law, unless you say otherwise. The amounts

are the same as those allowed to guardians of property.

Effective April 1, 2000, the rates permitted to guardians

and attorneys of property are 3 percent on monies

received and paid out and 3/5 of 1 percent on the

average annual value of the assets. If your attorney

acted under your power of attorney before April 1,

2000, the rates permitted were 2½ percent on monies

received and paid out and 2/5 of 1 percent on the

average annual value of the assets.

If there is more than one attorney, they will have to

share the permitted amount.

If you want to prohibit your attorney(s) from taking any

payment or you want to set a specific amount yourself

(such as a percentage of your income or a fixed yearly

amount), you can do this by writing your instructions in

Part 5 of the form.

If no specific instruction is made in your power of

attorney, your attorney may use his/her discretion in

accepting compensation allowed for by the law.

_____________________________________________

Part 8:

YOUR SIGNATURE

Read each page of this form over carefully before

you sign it. [Note: Those who are providing assistance

to someone who cannot read this form should see

“Additional Guideline” below.]

Before you sign, be sure that:

1. You understand the power your attorney will

have and when the document will become

effective.

2. You trust your attorney to act in your best

interests.

3. You are signing this document of your own free

will and not because of pressure from anyone

else.

4. You have carefully considered obtaining advice

from a lawyer or other trusted advisor.

You must sign in front of two witnesses as described in

Part 9 of the guidelines.

If you are sure that the form says what you want it to

say, sign your name in Part 8 of the form.

After you have signed the form, print or type the date

and your address in the appropriate space.

Part 9:

WITNESS SIGNATURES

The law requires that two people witness your

signature.

Both of the witnesses must be present together when

you sign.

Certain people are not allowed to sign as your

witnesses; these people are listed in Part 9 of the forms.

After you have signed, the witnesses should each sign

their names in Part 9 of the form, in your presence and

in the presence of each other.

Additional Guidelines

What to do if the person making this document

cannot read:

Someone should read the complete form to the person

giving the power of attorney in the presence of both

witnesses.

Then, if satisfied that the person understood it, the

witnesses should insert and complete the following

clause on the form above the line where they sign:

“This continuing power of attorney for property was

signed by

(name of the person giving the power of attorney)

after it was read to him/her in our presence and

he/she appeared to understand it and approve

it”

What to do with this form after it is signed:

You may wish to have it reviewed by an expert advisor.

If it is not completed properly, it may not be valid. It is

advisable to tell your family, lawyer, and any financial

institutions you deal with the name, address and

telephone number of your attorney(s). Keep them

updated regarding any change in your attorney’s

address or telephone number.

Please do not return this completed form to the

Public Guardian and Trustee's Office.

It is not necessary to register your continuing powers of

attorney for property anywhere.

We recommend that after you complete this

document, you take a copy to your bank(s) so that

they understand your wishes and have it on record.

If this document is properly completed and you

make it of your own free will when you are mentally

capable the bank must recognise it. But they may

have questions and it is best to have those resolved

before your attorney needs to use the document. You

may give the original document to your attorney(s),

leave it with a trusted person other than your

attorney to hold it for safekeeping (with instructions

about when it may be released), or keep it in a safe

place where the attorney(s) can locate it quickly if

necessary.

It is a good idea to keep at least one photocopy of the

document. If possible, keep it with you, with the

address and telephone number of your attorney(s).

Revoking this Power of Attorney:

You have the right to revoke (cancel) this power of

attorney at any time as long as you are capable. If you

decide to revoke this document, you must write the

revocation down on paper, sign and date it, and have

it witnessed in the same way as the power of attorney

(i.e. two witnesses, etc) Notify your attorney,

financial institutions and all the people you told about

your power of attorney.