Power of Attorney for Property

What is a Power of Attorney for Property?

A Continuing Power of Attorney for Property is a legal document in which a person (the grantor) gives someone else the legal authority to make decisions about their finances. In this context, the word attorney does not mean lawyer; rather, it means agent. The power of attorney is called "continuing" because it can be used after the person who gave it is no longer mentally capable of making financial decisions themselves.

What are the different types of Powers of Attorney for Property?

Each jurisdiction will refer to a personal directive as follows, each of which having an identical or similar purpose:

• Continuing Power of Attorney for Property: Ontario, Prince Edward Island
• Enduring Power of Attorney for Property: Alberta, British Columbia, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, Newfoundland and Labrador, Northwest Territories, Nunavut, Yukon

The above documents all have the same purpose and will be named based on the province or territory.

What is the difference between a Power of Attorney for Property and a Power of Attorney for Personal Care?

Another type of power of attorney commonly used is a Power of Attorney for Personal Care. Some Provinces and Territories refer to that document as a Personal Directive, which has the same effect as the Power of Attorney for Property.

The attorney in a Personal Directive makes decisions concerning the grantor's health, not their finances.

Is it mandatory to have a Power of Attorney for Property?

No. Having a power of attorney for property is not mandatory. If an individual doesn't have a power of attorney for property, family members will not be able to make financial decisions for the grantor. If the capacity of the individual has declined, they may not legally be able to sign a power of attorney for property and court intervention will be required in order to have the individual's finances taken care of.

What must a Power of Attorney for Property contain?

A Power of Attorney for Property must include:

• Name of the grantor (or maker);
• Revocation clause (cancels the previous power of attorney);
• Name of one or more attorneys for property;
• Name of a substitute attorney (if applicable);
• State the event on which the power of attorney will become effective;
• State any restriction to the authority of the attorney(s) for property;
• State the compensation to be paid to the attorney(s).

What is not allowed in a Power of Attorney for Property?

A Power of Attorney for Property cannot contain a clause allowing the attorney (or agent) to amend the grantor's Last Will and Testament. Furthermore, the power of attorney cannot direct any unlawful acts, such as theft or fraud.

Who can sign a Power of Attorney for Property?

To make a valid power of attorney, the grantor must be a specific age, which depends on the Province or Territory:

• 18 years of age: Ontario, Alberta, Manitoba, Saskatchewan, Prince Edward Island
• 19 years of age: British Columbia, New Brunswick, Nova Scotia, Newfoundland and Labrador, Northwest Territories, Nunavut, Yukon

The grantor must also be mentally capable of giving a continuing power of attorney for property. This means that the grantor:

• knows what property they have and its approximate value;
• is aware of their obligations to those people who depend on them financially;
• knows what authority their attorney(s) will have;
• knows that their attorney must account for all the decisions he or she makes about their property;
• knows that, if they are capable, they may cancel their power of attorney;
• understands that unless their attorney manages the property prudently, its value may decline; and
• understands that there is always the possibility that the attorney could misuse the authority.

What has to be done after a Power of Attorney for Property was signed?

After this document has been signed by the grantor (or maker), it must be witnessed.

After the Power of Attorney for Property is witnessed, one of the witnesses must sign an Affidavit of Execution. The Affidavit serves as evidence that the Personal Directive was properly signed before a witness or witnesses.

The affidavit must be signed in front of a commissioner of oaths and affidavits. A commissioner is a person appointed by the government to certify affidavits. A commissioner also includes a lawyer or a paralegal. This means that any lawyer or paralegal can commission the affidavit.

After the signatures have been obtained, the grantor (or maker) must store the document in a safe and secure location, such as a fireproof vault. The grantor (or maker) should also distribute copies of the document to the individuals named.

Which documents should be attached to a Power of Attorney for Property?

An Affidavit of Execution should be attached to the Power of Attorney for Property. The Affidavit is not mandatory, but the importance of the Affidavit should not be overlooked.

The Affidavit serves as evidence that the Power of Attorney for Property was properly signed before a witness or witnesses. An affidavit should always accompany a Power of Attorney.

Is it necessary to have witnesses to a Power of Attorney for Property?

The document must be signed by two witnesses, in the presence of each other and the grantor. In some jurisdictions, only one witness is needed. Even if only one witness is legally required, two witnesses may still sign nevertheless.

Disqualified witnesses include the attorney's spouse, the grantor's spouse, a child of the grantor, or anyone under the legal age of majority. The ages of majority are as follows:

• Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, Saskatchewan: 18 years old.
• British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Yukon: 19 years old.

In Manitoba, only certain professionals like a lawyer, doctor, police officer, can be a witness to a Power of Attorney for Property.

What are the costs involved in the finalization of a Power of Attorney for Property?

If the witnesses to the Power of Attorney for Property have signed an affidavit of execution, it needs to be commissioned by a commissioner, which will be an added fee. The amount of the fee depends on the individual commissioner's rate (around $50-$300). If a lawyer's certificate is required, this may also be an added fee, a quote for which can be obtained by calling local lawyers.

Which laws are applicable to a Power of Attorney for Property?

The pieces of legislation governing Power of Attorney for Property are the following:

• Ontario: Substitute Decisions Act, 1992, S.O. 1992, c. 30
• Alberta: Powers of Attorney Act, RSA 2000, c P-20
• British Columbia: Power of Attorney Act, RSBC 1996, c 370
• Manitoba: The Powers of Attorney Act, CCSM c P97
• Saskatchewan: Powers of Attorney Act, 2002, SS 2002, c P-20.3
• New Brunswick: Enduring Powers of Attorney Act, SNB 2019, c 30
• Nova Scotia: Powers of Attorney Act, RSNS 1989, c 352
• Prince Edward Island: Powers of Attorney Act, RSPEI 1988, c P-16
• Newfoundland and Labrador: Enduring Powers of Attorney Act, RSNL 1990, c E-11
• Northwest Territories: Powers of Attorney Regulations, NWT Reg 027-2002
• Nunavut: Powers of Attorney Regulations, Nu Reg 023-2006
• Yukon: Enduring Power of Attorney Act, RSY 2002, c 73

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