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A power of attorney is a document in which a person grants power over his or her assets or personal care to another person.
Power of Attorney for Property
A continuing power of attorney for property will continue even if the person granting it becomes legally incapacitated for health reasons. It must be in writing and witnessed by two persons. In order for it to be a continuing power of attorney it must state so. It is deemed to be in effect as soon as it is executed unless the grantor instructs otherwise in writing in the actual Power of Attorney for Property. An attorney for property should be at least 18 years of age. The following are requirements under Substitute Decisions Act for the person granting Power of Attorney for Property:
Capacity to give continuing power of attorney
(1) A person is capable of giving a continuing power of attorney if he or she,
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependants;
(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;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30, s. 8 (1).
Capacity to revoke
(2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one. 1992, c. 30, s. 8 (2).
The following persons are not allowed to be witnesses under s. 10(2) of the Substitute Decisions Act:
Persons who shall not be witnesses
(2) The following persons shall not be witnesses:
- The attorney or the attorney’s spouse or partner.
- The grantor’s spouse or partner.
- A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.
- A person whose property is under guardianship or who has a guardian of the person.
- A person who is less than eighteen years old. 1992, c. 30, s. 10 (2).
(3) Repealed: 1996, c. 2, s. 6 (2).
To terminate the Power of Attorney for Property, such a termination must be in writing and executed and witnessed the same way as the actual Power of Attorney for Property.
Power of Attorney for Personal Care
It must be signed by the person granting it and witnessed by two persons. Unlike the Continuing Power of Attorney for Property which is deemed to be effective from the moment it is signed unless otherwise indicated, Power of Attorney for Personal Care is effective only upon the incapacity of the grantor. An attorney for personal care should at least 16 years of age or older. The following are requirements under Substitute Decisions Act for the person granting Power of Attorney for Personal Care:
Capacity to give power of attorney for personal care
- (1) A person is capable of giving a power of attorney for personal care if the person,
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person. 1992, c. 30, s. 47 (1).
The following persons are not allowed to be witnesses under s. 10(2) of the Substitute Decisions Act:
Persons who shall not be witnesses
(2) The following persons shall not be witnesses:
- The attorney or the attorney’s spouse or partner.
- The grantor’s spouse or partner.
- A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.
- A person whose property is under guardianship or who has a guardian of the person.
- A person who is less than eighteen years old. 1992, c. 30, s. 10 (2).
(3) Repealed: 1996, c. 2, s. 6 (2).