Most Ontarians know they should have a will. Far fewer understand that a will only takes effect when you die — and does nothing to protect you while you are alive but unable to manage your own affairs. That is the job of a power of attorney, and having both types properly documented is every bit as important as having a will.
The Two Types of Power of Attorney in Ontario
Ontario law recognizes two distinct powers of attorney, each covering a different aspect of your life:
Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property authorizes your chosen person — your attorney for property — to manage your financial affairs. The word ‘continuing’ is significant: this type of power of attorney remains valid even if you become mentally incapable. A regular (non-continuing) power of attorney would terminate upon incapacity — exactly the opposite of when you need it most.
Your attorney for property can manage bank accounts and investments, pay bills and mortgages, file tax returns, buy and sell property on your behalf, and generally handle any financial transaction that you could handle yourself.
Power of Attorney for Personal Care
A Power of Attorney for Personal Care authorizes your chosen person — your attorney for personal care — to make decisions about your health and personal wellbeing if you are no longer able to make them yourself. This includes decisions about medical treatment, housing, diet, clothing, and hygiene.
Your attorney for personal care takes over only when you lack the capacity to make these decisions yourself. While you have capacity, you make your own choices, even if a Power of Attorney for Personal Care exists.
Why ‘Both’ Is Not Optional
The two documents cover entirely different domains. If you have a Continuing Power of Attorney for Property but no Power of Attorney for Personal Care, your family has authority over your money but no legal authority to direct your medical care. If there is a disagreement about your treatment, medical professionals may not be able to act without a Consent and Capacity Board hearing — a slow, traumatic, and expensive process.
Conversely, a Power of Attorney for Personal Care without a Continuing Power of Attorney for Property means your personal care decisions are covered, but your finances may be frozen or mismanaged unless a family member applies to court to be appointed as your guardian of property — again, an expensive and time-consuming process.
Choosing Your Attorney
Choosing the right attorney — for property or for personal care — is the most important decision in the power of attorney process. This is not a decision to make based on family politics or seniority. It is a decision based on trust, competence, and availability.
Your attorney for property should be someone who is financially literate, organized, and genuinely trustworthy. They will have significant access to your assets and significant legal obligations to manage them in your best interests. Common choices include a spouse, an adult child, a sibling, or a trusted friend. Some people appoint a professional trustee for complex estates.
Your attorney for personal care should be someone who knows your values, understands your medical wishes (including any end-of-life instructions in the document), and can communicate assertively with medical professionals on your behalf.
The Risks of Informally Chosen or Poorly Drafted Powers of Attorney
Do-it-yourself powers of attorney and online template documents create significant legal risk:
- Ontario has specific execution requirements — two witnesses are required, and certain people cannot serve as witnesses (your attorney, the attorney’s spouse, your spouse, your child, or anyone under 18)
- Failure to include ‘continuing’ language in a property power of attorney may mean it terminates precisely when it is needed
- Broad, unlimited authority without any conditions or restrictions can expose you to financial abuse
- Absent any written instructions about your personal care values, your attorney for personal care may make decisions that conflict with your wishes
Including Personal Care Instructions
A Power of Attorney for Personal Care can — and should — include guidance about your personal values and medical wishes. While this is not the same as a living will or advance directive (Ontario does not have a formal advance directive legislation), including your instructions in the document provides important guidance to your attorney and to the medical professionals who will be caring for you.
You can specify whether you want life-sustaining treatment in certain circumstances, your preferences around resuscitation, your wishes about long-term care versus home care, and any other personal care values that matter to you. The more direction you provide, the easier your attorney’s job becomes — and the more confident you can be that your wishes will be respected.
What Happens If You Have Neither
If you become incapacitated without any powers of attorney in place, Ontario’s Substitute Decisions Act provides a default hierarchy of substitute decision-makers for personal care. For property, someone must apply to court to be appointed as your guardian. This process can take months, costs thousands of dollars in legal fees, and results in ongoing court supervision of your finances.
It is entirely preventable. A properly drafted, executed, and stored set of powers of attorney eliminates this risk at relatively modest cost.
Final Thoughts
Powers of attorney are not documents you create because something is wrong. They are documents you create because life is unpredictable and you care about what happens to you — and to the people who love you — if something goes wrong. Have them drafted by an estate lawyer who understands Ontario’s legal requirements, store them safely, and let your chosen attorneys know that they exist and where to find them.
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Goldstone Law Professional Corporation serves clients across Mississauga, Brampton, Oakville, and the greater GTA in real estate, corporate, estate, and mortgage law. Whether you are buying your first home, structuring a business deal, or planning your estate, our team provides the clear, practical legal guidance you need.
Visit goldstonelawpc.com or call us at 905-595-9917. We are located at 201-186 Robert Speck Parkway, Mississauga, ON L4Z 3G1.
Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. For advice specific to your situation, please consult a qualified Ontario lawyer.
This article is provided for general information only and does not constitute legal advice. For advice about your specific situation, please contact Goldstone Law PC directly.