Everything you need to know about powers of attorney in Canada

An essential step in adulthood is properly protecting your finances, health, and personal decisions as you age and as life changes take place. You may not have even considered what would happen if you experienced an accident or a personal medical emergency, and it’s crucial to plan for those scenarios. 

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.

Making these decisions now provides certainty that your affairs will be taken care of in the event you are temporarily unable to manage them.

What is a power of attorney?

Power of attorney, or POA for short, is a legal document that gives someone you trust the authority to make decisions on your behalf, and represent you to others. This ability is given in advance by you, the “grantor”, “donor”, or “maker” of the document. The 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. 

When and why do I need a power of attorney?

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 in the event of an emergency 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.

Who can I choose as my attorney?

People often appoint their spouse, relative, or a close friend with good judgment to be their attorney.

What are the provincial differences when it comes to power of attorney?

Certain provinces may have different signing requirements for power of attorney documents, and the documents and roles may have different names.

Financial/Legal

  • In Ontario, you make a “power of attorney for property” and nominate an attorney for property.
  • In Alberta, BC, Nova Scotia, Saskatchewan, Manitoba and New Brunswick you make an “enduring power of attorney” and nominate an attorney

Personal/Medical

  • In Ontario and New Brunswick, you make a “power of attorney for personal care” and nominate an attorney for personal care
  • In Alberta and Nova Scotia, you make a “personal directive” and nominate an agent
  • In British Columbia, you make a “representation agreement” and nominate a representative
  • In Saskatchewan and Manitoba you make a “healthcare directive”

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.

Each province may also 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.

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. 

What powers do my attorneys have?

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 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.

How should I choose an 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 your spouse, a 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 (one is making acting on your behalf while you’re still alive, 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 in your province (18 in Ontario and Alberta, 19 in British Columbia)

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 attorney?

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.

You can either have the same person appointed for both, or two different individuals. 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.

Why do I need two different power of attorney documents (personal care and property)?

In Ontario, there are two types of powers of attorney: a power of attorney for personal care and a power of attorney for property.

Power of attorney for property: The person described in this document will make decisions about your property and finances, such as paying your bills, managing your investments and collecting any money owed to you, if you are medically unable to do so yourself. 

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. This person will also communicate which life support measure you have outlined in your will. 

What makes a power of attorney enduring or continuing? Is this what I'm getting?

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 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.

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 traveling or if they are injured. 

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. 

Who can act as a witness when I sign my power of attorney for property?

Similar to executing a will, when signing your power of attorney documents you will need two witnesses. Both 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

British Columbia, Nova Scotia, New Brunswick and Manitoba enduring power of attorney: Notarization 

The Land Titles and Survey Authority of British Columbia, Manitoba, 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 here. Find a notary in Manitoba here. Find a notary in New Brunswick here. 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. 

Who can act as a witness when I sign my power of attorney for personal care? (personal directive/representation agreement)

Like the power of attorney for property, when signing your power of attorney for personal care you will need two witnesses. Both must be present with you when you sign, and they must also sign the documents themselves. The witnesses can be the same for both power of attorney for property and for personal care. 

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 their 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 testament that you signed the document.

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.