How Do I Set Up a Power of Attorney in Ontario?

Steps to set up a power of attorney in Ontario

Ontario actually has two separate documents, both created under the Substitute Decisions Act, 1992: a Continuing Power of Attorney for Property, which covers financial and legal decisions, and a Power of Attorney for Personal Care, which covers health and personal care decisions. Most people who want to prepare for possible future incapacity complete both. The steps below walk through the process for either document; where a rule differs between them, it’s noted.

1. Confirm you meet the age and capacity requirements.
2. Decide which document(s) you need, and choose your attorney(s).
3. Decide when the attorney’s authority should start.
4. Prepare the document.
5. Sign it in front of two eligible witnesses.
6. Store the signed original safely and let people know it exists.

1. Confirm you meet the age and capacity requirements

A Continuing Power of Attorney for Property can only be made by a person who is at least 18 years old, since Part I of the Substitute Decisions Act, 1992 applies to decisions on behalf of persons at least eighteen (s. 4). A Power of Attorney for Personal Care falls under Part II of the Act, which applies to persons at least 16 years old (s. 43).

For a property POA, the grantor must also meet the Act’s specific capacity test, which includes appreciating that the attorney could misuse the authority given to them (s. 8(1)(g)). Capacity is assessed at the time of signing; it cannot be granted retroactively once a person has lost capacity, so this document has to be made while the grantor is still able to understand what they’re signing.

2. Decide which document(s) you need, and choose your attorney(s)

You can name one attorney or more than one. Without a property POA in place, family members, including a spouse, cannot automatically step in to make financial decisions on your behalf; they may have to apply to court to become your court-appointed guardian instead. That’s the practical reason most people complete the property document even if they’re reluctant to think about incapacity.

3. Decide when the attorney’s authority should start

Unless the document states otherwise, a property attorney in Ontario can start making financial decisions immediately upon being appointed, not only once the grantor becomes incapable. If you want the authority to begin only at a later point, such as after a doctor confirms incapacity, the document needs to say so explicitly.

4. Prepare the document

Ontario’s Ministry of the Attorney General provides free official Power of Attorney kits, so there is no mandatory government fee to create either document. Using a lawyer to draft or review the document is optional and comes at additional cost, but it isn’t a legal requirement.

5. Sign it in front of two eligible witnesses

The grantor must sign the Power of Attorney in front of two witnesses, and the witnesses must also sign. Traditionally, all three people needed to be physically present together for the entire signing process. Since a legislative change in April 2021, however, a POA can instead be signed and witnessed remotely using audio-visual technology, so everyone no longer needs to be in the same room.

Not everyone is allowed to act as a witness. Under the Act, the following people cannot witness your POA:

6. Store the signed original safely and let people know it exists

There is no requirement to register or file a Power of Attorney with the government or any registry. Once signed, the original document is simply kept by the grantor, the attorney, or another trusted party. Because banks, hospitals, and other institutions will typically want to see the original or a certified copy before acting on it, letting your attorney know where it’s kept matters more than any government filing step.

What this document does and doesn’t cover

A Continuing Power of Attorney for Property deals only with financial and legal matters; it has no authority over health or personal care decisions, which fall under the separate Power of Attorney for Personal Care. Neither document replaces a will: a POA only has effect while the grantor is alive, and its authority ends on death, at which point the grantor’s will and estate trustee take over.