Powers of attorney

(a) Are there probate fees in Ontario and if so, how are they determined?

(a) What is the legislation that governs powers of attorney in Ontario?

Powers of attorney for property are primarily governed by Part I of the Substitute Decisions Act.

(b) What type of authority may be granted under a power of attorney and what are the limitations?

Summary

A continuing power of attorney for property may allow an attorney to do anything that the grantor can do if capable, except make testamentary dispositions and any other restrictions contained in the document itself.

Discussion

A continuing power of attorney for property is a power of attorney that can be used while the grantor is incapable of managing property, according to Ontario’s Substitute Decisions Act (the “SDA”). A continuing power of attorney may authorize the person named as attorney to do anything on the grantor’s behalf that the grantor could do if capable, except make a will.

There are three major limitations to the attorney’s authority. First, any restrictions specified by the grantor in the power of attorney itself apply. Second, an attorney cannot make a will or make testamentary dispositions. What may be considered a “testamentary disposition” for this purpose is a legal question that depends on the context. For example, in some cases, the transfer of the grantor’s account from sole ownership to joint ownership has been found by an Ontario court to be a testamentary disposition that was not allowed. Finally, an attorney is a fiduciary and must exercise their powers honestly and in good faith, in the interests of the grantor.

(c) What are the formalities for executing a power of attorney in Ontario and can it be executed virtually?

A power of attorney for property must be executed in the presence of two witnesses, each of whom must sign the power of attorney as a witness, according to Ontario’s SDA.

The following persons cannot be a witness (SDA s. 10):

1. the attorney or the attorney’s spouse or partner.

2. the grantor’s spouse or partner.

3. a child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child.

4. a person whose property is under guardianship or who has a guardian of the person.

5. a person who is less than 18 years old.

A power of attorney cannot be executed virtually, but the requirement for witnesses can be satisfied by using audio-visual communication technology (SDA s. 3.1(2)). The grantor and witnesses must be able to see, hear and communicate with each other in real time. The parties may sign complete, identical counterpart versions of the power of attorney, which together constitute the power of attorney (SDA s. 3.1(3)).