A Power of Attorney (POA) is a written, legal document which authorizes another person to make healthcare, financial and legal decisions on your behalf. POA documents are created separately for healthcare and for property matters. It’s an important document needed to protect your finances, health and personal decisions as you age and as life takes place. You may not have even considered what would happen if you become incapable, and it’s crucial to plan for those scenarios by making a power of attorney document.
Appointing an “attorney”, also called a “representative” or “agent”, is a positive step forward to securing peace of mind. This is done through a power of attorney document, which may be called a personal directive, health care directive, representation agreement, or living will in your province or territory.
The word “attorney” in these situations does not mean “lawyer”, they are simply a preselected person acting on your behalf.
Learn how to make an informed decision in choosing and setting up your power of attorney (POA) in Canada to manage your future care and finances.
What Is A Power Of Attorney (POA)?
Power of attorney or POA, is a legal document that gives someone you trust (the 'attorney' or 'agent') the authority to make decisions on your behalf (the 'grantor' or 'donor') and represent you to others.
The legal authority may be general in nature, encompassing all acts that the attorney may perform, or be limited to specific acts, such as the payment of bills, investment of certain assets, sale of specified real estate, or authority to transfer securities from the attorney’s name to that of another person. This ability is given in advance by you, the “grantor”, “donor”, or “maker” of the document.
How Does a Power of Attorney Work?
You must do the following to set up a power of attorney:
- Choose a power of attorney: Someone you trust with your personal care and financial affairs. You can also choose an external company to manage your affairs and represent you as a power of attorney.
- Choose the scope of their power: Will they have control over your personal affairs, finances, property, or a combination?
- Create the POA document: A platform like Willful lets you establish power of attorney documents for health and property, with detailed signing instructions
- Get the POA document witnessed and/or notarized: Depending on the province or territory where you live, the requirements around witnessing or notarizing your POA vary. If you live in Nova Scotia, New Brunswick, or British Columbia and your POA will be managing property, you'll have to get your POA notarized according to Land Titles and Survey Authority guidelines.
What Are The Four Types of Power Of Attorney Documents?
There are two main types of powers of attorney:
A power of attorney for personal care
A spouse, relative or close friend with good judgment, the person described in this document will be the voice of your healthcare decisions if you are unable to communicate. This individual can make decisions regarding your health care, housing, meals, and clothing.
A power of attorney for property
The person described in this document will make decisions about your property and financial affairs, such as paying your bills, managing your bank accounts and investments and collecting any money owed to you if you are unable to do so yourself.
Note: these two types of power of attorney documents have different document and role names in different provinces, and may also have different signing requirements, which we outline below.
These can be divided into two subcategories:
A general power of attorney
A general power of attorney ends immediately if you become mentally incapacitated or die. This type of POA makes sense when you aren’t able to manage your legal and financial affairs, such as an extended period of out-of-country travel. Their responsibilities might include signing checks, selling property, or filing taxes.
An enduring or continuing power of attorney
By contrast, an enduring or continuing power of attorney continues to have effect after the point of your mental incapacity. Attorneys nominated in these documents maintain their power to act if and when you become infirm, unable to communicate, or otherwise mentally incapable.
An enduring power of attorney, what we’re referring to in this article, is a document you can use to appoint a person to make financial and legal decisions on your behalf. This type of POA continues if you were to become mentally incapable.
What Makes A Power Of Attorney Enduring Or Continuing?
A general power of attorney ends immediately if you become mentally incapable or die. By contrast, enduring or continuing powers of attorney continue to have an effect after the point of your mental incapacity. Attorneys nominated in these documents maintain their power to act if and when you become infirm, unable to communicate, or otherwise mentally incompetent incapable.
You are able to decide how much power you would like to give to your appointed attorney. Many Canadians use a limited power of attorney when they need assistance looking after their affairs due to travelling or if they are injured.
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When And Why Do I Need A Power Of Attorney In Canada?
Making a power of attorney is an important task that should be completed by every adult sooner rather than later in life.
An attorney will make decisions (that you have already outlined in your documents) about your property, finances, personal life, and medical care if you are unable to do so yourself.
Think of your POA as a form of disability insurance (it takes care of you while you’re alive) and your will as a form of life insurance (it takes care of your loved ones after you pass away).
Every adult should have power of attorney documents covering the legal, financial, personal, and medical spheres of their lives.
Without a power of attorney, a family member would likely need to apply to become your court-appointed guardian. In the case that there is no power of attorney for personal care (POAPC), the law dictates who can act on your behalf. The process for making decisions on your behalf in the event you become incapable of doing so yourself may differ from province to province, but in most cases, involves unnecessary delays during a critical time. Without creating a POA, you are also unable to formalize your wishes for life support and other healthcare treatment.
Power of Attorney Documents Across Canada
Certain provinces may have different signing requirements for power of attorney documents, and the documents and roles may have different names. Willful generates the correct document and uses relevant terminology based on your province of residence. All of our document templates were created in collaboration with estate lawyers in each of our active provinces. Here's a breakdown of the different power of attorney document names in each of our active provinces.
In Ontario, for financial and legal matters, you make a power of attorney for property and nominate an attorney for property. For personal and medical care, you make a power of attorney for personal care and nominate an attorney for personal care. You can find more information about the Powers of Attorney Act in Ontario on the provincial government's website.
In British Columbia, for financial and legal matters, you make an enduring power of attorney and nominate an attorney. For personal and medical care, you make a representation agreement and nominate a representative. You can find more information about the Power of Attorney Act in British Columbia on the provincial government's website.
In Alberta, for financial and legal matters, you make an enduring power of attorney and nominate an attorney. For personal and medical care, you make a personal directive and nominate an agent. You can find more information about the Powers of Attorney Act in Alberta on the provincial government's website.
In Saskatchewan, for financial and legal matters, you make an enduring power of attorney and nominate an attorney. For personal and medical care, you make a healthcare directive. You can find more information about the Powers of Attorney Act in Saskatchewan on the provincial government's website.
In Manitoba, for financial and legal matters, you make an enduring power of attorney and nominate an attorney. For personal and medical care, you make a healthcare directive. You can find more information about the Powers of Attorney Act in Manitoba on the provincial government's website.
In Nova Scotia, for financial and legal matters, you make an enduring power of attorney and nominate an attorney. For personal and medical care, you make a personal directive and nominate an agent. You can find more informatino about the Powers of Attorney Act (amended) on the provincial government's website.
In New Brunswick, for financial and legal matters, you make an enduring power of attorney and nominate an attorney. For personal and medical care, you make a power of attorney for personal care and nominate an attorney for personal care. You can choose to create an Advance Health Care Directive to accompany your Power of Attorney for Personal Care, which is simply a list of additional instructions that accompanies your POA for Personal Care.
Due to recent legislative changes in New Brunswick relating to Power of Attorney documents, Willful is currently unable to offer the ability to create Power of Attorney documents in New Brunswick.
Willful generates the correct document and uses relevant terminology based on your province of residence. All of our document templates were created in collaboration with estate lawyers in each of our active provinces.
In Quebec, a power of attorney only applies to property, allowing your attorney to act on your behalf while you’re still capable. A power of attorney for personal care is called a Protection Mandate, which comes into effect if you become mentally incapable. Willful is currently unable to offer the ability to create Power of Attorney or Protection Mandate documents in Quebec.
Does Power of Attorney Override A Will?
In Canada, a power of attorney does not override a will and the person you appoint cannot make your will or change your existing one. They’re also prohibited from changing a beneficiary on a life insurance plan or giving a new power of attorney to someone on your behalf.
What Does A Power Of Attorney Do?
A power of attorney for property can do anything on the grantor’s behalf in respect of property that the grantor if capable could do, except make a will (for example pay bills, apply for benefits, or sell a home).
A power of attorney for personal care can make decisions related to health care, nutrition, shelter, clothing, hygiene and safety. A person cannot act as attorney for personal care if they (1) provide health care to the grantor for compensation; or (2) provides residential, social, training or support services to the grantor for compensation unless they are the grantor's spouse/partner/relative.
Who Can I Make My Power Of Attorney?
People often appoint their spouse, a family member, or a close friend with good judgment to be their attorney. Keep in mind that the person you appoint can decline the role, so make sure to discuss it with them first. Finally, consider alternates if they decline or are unable to act when it’s needed.
The rules around who you choose to be your POA vary for each province. Make sure to check that your POA meets the requirements for where you live.
Generally speaking, your power of attorney should be:
- The age of majority (18) in your province (with the exception of British Columbia, New Brunswick, Newfoundland and Nova Scotia where the age of majority is 19)
- Aware of your personal interests and affairs
- A reliable and trustworthy person
- Someone with the time to oversee their responsibilities
- Someone who lives nearby or can be accessible with short notice
How Should I Choose My Power Of Attorney?
Below are some factors to consider when choosing a power of attorney for personal care and property.
Choose someone comfortable with the responsibility
Being an attorney can be a stressful role, especially the attorney for personal care as they may have to make difficult decisions based on your state of health and well-being. This could include agreeing to, or refusing, certain medical procedures and life-saving interventions.
They could also choose your accommodation, who interacts with you, who gives you care, and they may have full access to all of your medical records. They may even be called upon to represent you in court as your litigation guardian, should the matter at hand relate to your health or personal care.
Your attorney for property will need to make important decisions surrounding your finances and legal obligations. You’ll want to choose someone organized and able to make critical decisions during a potentially stressful time. They will have the power to take possession of your property, using it to benefit you or your close family as they believe you would do if capable. They may also sell, rent, renovate, or otherwise manage your property, if it is what you would have done.
Choose someone you trust
Similar to choosing your executor, you’ll want to select someone trustworthy, such as a spouse, family member, relative or close friend. Remember that your attorney and executor do not have to be the same person, and they never act at the same time (given one is acting on your behalf while you’re still alive, and the other is acting on your behalf once you’ve passed away).
These should be people with your best interests at heart, as they will have very broad powers to make decisions that affect your finances, healthcare, and day-to-day life.
Choose someone who is legally able to be your attorney
The person you choose should be a responsible adult, ideally someone accessible and living in a nearby city or town to you. While being a resident of Canada is not legally required, it's strongly recommended that the individual can be contacted quickly and can act with speed in an emergency. Typically, they must be over the age of majority (18) in your province (with the exception of British Columbia, New Brunswick, Newfoundland and Nova Scotia where the age of majority is 19). In Ontario, an individual can act as a power of attorney for personal care once they are over 16.
Review your power of attorney regularly
Like your will, you should review and update your power of attorney documents as life changes. Monumental moments such as the birth or adoption of a child, moving to a new home, or divorce may trigger you to make changes to your documents.
Make sure your attorney is aware of the types of decisions they may need to make, so they will feel educated and confident to take on the responsibilities if called on.
Can I Choose More Than One Power of Attorney?
It is possible to appoint two individuals as your power of attorney. In this scenario, both individuals must act jointly, which means they must both agree on decisions being made. If you want to allow either individual to make decisions without the other, you must state in your POA documents that either individual can act severally.
With Willful you can only pick one attorney for property and one attorney for personal care. At the recommendation of our legal advisors, we do not currently allow multiple persons to be jointly nominated on the same tier, as it can lead to indecision and arguments in times of immediate need. However, you have the option to appoint an alternate attorney as a backup.
You can either have the same person appointed for both or two different individuals. The advantages of having the same person appointed to both are simplicity, consistency, and lack of divisiveness. However, it can cause a conflict of interest when it's the same person. On Willful, you can have multiple layers of backups for each role should your first choice be unable or unwilling to act, or later decide that they cannot continue.
Power of Attorney Forms in Canada
To invoke a power of attorney, you need a Power of Attorney form to help you formalize your wishes and choices of attorney or representative. While certain will kits and government websites offer power of attorney forms, they are generally fill-in-the-blank documents and very cookie cutter.
While these are cost-effective options, they may not account for your unique life situation. You will also need to take great care that the documents and method of witnessing are in compliance with the law in your province or territory.
Willful’s dynamic platform can help create your personalized power of attorney documents so you know that your wishes will be carried out. We will ask you questions such as your province of residence to ensure we are generating the right documentation and information for your current life situation. In addition, all Willful documents come with instructions on how to witness and sign your power of attorney documents to ensure they are legally-binding.
Witnessing A Power Of Attorney
Who can act as a witness when I sign my power of attorney?
Please note that signing requirements vary by province. Refer to the instructions page of your Willful documents for localized instructions.
Similar to executing a will, when signing your power of attorney documents you will need two witnesses (this may vary based on province). Witnesses must be present with you when you sign, and they must also sign the documents themselves.
The following people cannot be witnesses for your power of attorney:
- A spouse, common-law partner, child or someone you treat as your child
- Your attorney, or your attorney’s spouse or partner
- Anyone who has a “guardian of property” appointed for them by a court because they are not able to manage their property due to medical reasons
- Anyone who has a “guardian of the person” appointed for them by a court because mentally they are not able to make personal care decisions
- Anyone under the age of majority in your province or territory
Family friends, or coworkers that you’ve known for a long time can be great choices as witnesses. They are typically unrelated to the power of attorney role but know you well and could be counted on to provide a testament that you signed the documents.
Manitoba: Witnessing by a lawyer or other approved official
In Manitoba an Enduring Power of Attorney document must be witnessed by a lawyer, justice of the peace or provincial/superior court judge, qualified medical practitioner, notary public, member of the RCMP, a police officer, or an individual registered to solemnize marriages. For a full list of who is eligible to sign, please see section 11 of the Powers of Attorney Act.
British Columbia, Nova Scotia, and New Brunswick enduring power of attorney:
The Land Titles and Survey Authority of British Columbia, New Brunswick, and Nova Scotia require a notarized EPoA for registration which is a prerequisite to buying, selling, or otherwise transacting in real estate on another’s behalf.
These are the only provinces Willful serves that require POA documents to be notarized, and notarization is only required by the Land Title and Survey Authority if someone is transacting real estate on your behalf. In plain English: if you own property and your designated attorney may have to buy and sell property in the event you become incapacitated, your POA must be registered with the Land Title and Survey Authority.
The LTSA won't register a POA unless it is either notarized itself, or has attached Statutory Declarations that are notarized. With Willful, our EPoA requires signatures from you, your chosen attorney(s) and two adult witnesses.
Included with your documents are statutory declarations for your attorney(s) and witnesses which need to be notarized in order to satisfy the requirements of the Land Title and Survey Authority in your province. This simple process can be completed at a low cost, and by a notary registered in your province.
- Find a notary in British Columbia. (In BC, our partners at Notary Pro can also help you get your documents notarized virtually)
- Find a notary in New Brunswick.
- Find a notary in Nova Scotia.
Please note: Getting the statutory declarations notarized can be done at a later date by the attorneys/witnesses, as needed.
Looking to make a will as well? Learn more about Canadian Will Kits here.
Standard of Care
The standard of care expected of an attorney is dependent on whether he or she is receiving compensation for acting. A person that does not get compensation must act in the way of an ordinary person i.e. the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs A person that does receive compensation must act in the manner that someone fulfilling a duty would otherwise i.e. the degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.
What Are The Advantages Of Having A Power Of Attorney?
Peace of mind
Life is unpredictable. Accidents happen and illnesses spring themselves on us. Having power of attorney documents in place can provide you with peace of mind knowing that someone you trust will be there to make important decisions about your healthcare and property during those unpredictable times.
If you were to become incapacitated or mentally incompetent due to illness or injury, having power of attorney documents in place ensures that your attorney can begin acting immediately.
Without a power of attorney for personal care, there may be delays before a substitute decision-maker can begin making certain decisions regarding your healthcare.
Without a power of attorney for property, a family member would likely need to apply to become your court-appointed guardian to begin managing your finances. The process for making decisions on your behalf in the event you become incapable of doing so yourself may differ from province to province, but in most cases, involves unnecessary delays during a critical time.
Power of attorney documents benefit your loved ones too
While your power of attorney documents are made to directly protect you, they also benefit your loved ones who face these challenging times along with you.
Your power of attorney documents provide your attorney with important instructions regarding your healthcare and property, instructions that come directly from you. This alleviates the stress on loved ones who may not be prepared to make these decisions during an emotional time and may not know what you would want if you could communicate for yourself.
Your power of attorney documents also prevent your loved ones from having to deal with court delays or disagreements between family members who have conflicting views on important decisions.
What Are The Risks Of Having A Power Of Attorney?
You’re giving someone broad powers to make decisions that affect your finances, healthcare, and day-to-day life.
When you appoint someone as your attorney, you’re giving them the ability to make big decisions on your behalf. This is why we stress the importance of choosing someone you trust and feel confident would have your best interests as their number one priority.
It’s also possible to reduce the scope of their decision-making abilities by creating a limited power of attorney that gives your attorney to complete a certain task (i.e. sell a house) within a specific time-frame (note: Willful currently does not offer the ability to create a limited power of attorney).
You can also feel reassured in knowing that your power of attorney is legally required to act in your best interest and exercise the care and skill of a reasonably prudent person. They have a duty to act diligently and in good faith for your benefit, following your directions and provincial laws. If your attorney fails to do so, they may be required to provide compensation out of their own pockets.
Joint attorneys may lead to disputes and delays
If you name more than one person as your attorney, they’ll need to come to an agreement before making a decision on your behalf. This can lead to indecision and arguments in times of immediate need. There are clauses, such as majority rule clauses, that can help in the event of disagreement.
For this reason, we do not currently allow multiple persons to be jointly nominated on the same tier. With Willful you can only pick one attorney for property and one attorney for personal care. But you can appoint backups in case one of your top choices are unable to take on the role!
You can choose your adult children to serve as your power of attorney
Adult children are often a suitable option to serve as a power of attorney instead of a spouse. While many people naturally think of their spouse as the best option, adult children are sometimes in a better position to handle the financial and legal affairs for their aging parents. Adult children also offer the additional advantage of their youth, ensuring continuity of support over the long term.
It’s important, however, to carefully consider the capabilities, reliability, and communication skills of an adult child before making this decision, as the power of attorney should always be granted to someone who is trustworthy and capable of managing financial and legal matters responsibly.
Use safeguards to protect yourself from abuse of power
Appointing a trustworthy and reliable individual as your power of attorney is the best way to ensure your affairs are managed correctly. You can also include additional safeguards in your POA document to further protect yourself from any abuse of power and ensure they always acting your best interest.
You have the option to include specific limitations on the POA’s authority, granting them only the necessary powers required to fulfill their duties. You can also include instructions in the power of attorney document for the attorney to gain approval from a trusted third-party, such as a lawyer or accountant, for bigger decisions.
A valid POA document in one province may not be valid in another province
Each province may have different nomination, signing, and witnessing requirements. Therefore, a POA document that’s valid in one province is not always valid in other provinces—unless the province's legislation recognizes valid powers of attorney from other provinces. This means that someone other than the person you have chosen as your attorney may have to make important decisions regarding personal care or property if the POA is not valid outside of the grantor’s home province.
With Willful, you can easily update your province when you move! We'll make sure you get updated documents that are specific to the province you live in.
Considerations for members of the 2SLGBTQIA+ community
Some members of the 2SLGBTQIA+ community experience significant barriers in their daily lives–especially in the context of accessibility and adequacy of health care. For these individuals, it’s essential that the power of attorney for healthcare deeply understands their lived identity, their unique healthcare needs, and the barriers that they have faced and will face when receiving treatment. To read more about these considerations, you can read our article “2SLGBTQIA+ Considerations For Estate Planning”.
Frequently Asked Questions About Power of Attorney
Does a Power of Attorney Get Paid?
In some provinces, the person you choose as your attorney might have the right to get paid, unless stated otherwise in the power of attorney documents. It's a good idea to talk to the person you pick as your attorney about how they will be paid for their work. Make sure to include this information in your power of attorney document.
How Can I Revoke My Power of Attorney?
To revoke a power of attorney, you can write a statement which states your intention to revoke your power of attorney, which is known as a Statement of Revocation. This statement must be signed in the presence of two witnesses, while you are mentally capable, and given to your appointed power of attorney. You can also make a new POA that revokes the previous one.
Secure Your Future With Willful
Having a Power of Attorney is an important step in protecting your personal and financial affairs when you’re unable to make those decisions for yourself. Don’t leave your loved ones wondering what they should do or who’s in charge of making those decisions on your behalf — create your legal Power of Attorney online now.