Please note that the information provided herein is not legal advice and is provided for educational purposes only. If you need legal advice with respect to durable power of attorneys, you should seek professional assistance.

Durable power of attorneys – also referred to as continuing power of attorneys – are legal documents that designate an individual (known as an attorney) to act on behalf of a person in the event that that person becomes disabled or incapacitated. So, in other words, it’s a power-giving document that allows the attorney to be able to make decisions on behalf of the incapacitated or disabled person. It is called “continuing” or “durable” because it can be used the person who gave it is no longer mentally capable.

There are durable power of attorneys over property and health care decisions. Typically, when you go to a lawyer’s office to draft your will, they will include power of attorneys as part of the last will and testament package.

Everyone should have a durable power of attorney to make sure that their financial and health care affairs are in order and capable of being looked after when they become unable to look after those things themselves.

To have a valid power of attorney under the Ontario Substitutes Decision Act:

1. The document itself must state that it is a continuing power of attorney or otherwise express the intention that the authority given may be exercised during the grantor’s incapacity to manage property.

2. The document must authorize a person to be an attorney.

3. The grantor (i.e. the person giving the power of attorney) must have capacity to give the continuing power of attorney (i.e. through knowledge, awareness, appreciation, etc.).

4. A person with capacity is capable of revoking a continuing power of attorney.

5. The document must be signed by two witnesses who are (among other things) not the grantor or attorney’s spouse or partner, a person less than 18 years old, or a child of the grantor (or somehone who the grantor has demonstrated a settled intention to treat as his or her child).

The power of attorney need not be in a set form or template.

A word or two on the requirement that the grantor must have sufficient capacity to grant the power of attorney. The grantor must be over the age of 18 and must be mentally capable as demonstrated by things like:

* knowing what kind of property he or she has and it’s approximate value;

* is aware of the obligations owed to his or her dependents;

* knows that the attorney must account for his or her dealings with the person’s property;

* knowing what authority is being granted to the attorney;

* appreciates that the attorney’s mismanagement could result in a decline of the value of property; and

* understanding the consequences of an attorney misusing their authority.