“How do I apply for Power of Attorney?” This is a question I encounter so frequently in my practice that I decided to write a short blog clarifying the difference between some of the key terms that are often used interchangeably (albeit incorrectly) when discussing the process by which another individual (the substitute decision-maker) obtains the legal authority to make decisions on behalf of someone else.
In Ontario, the law governing substitute decision-making is the Substitutes Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). The SDA describes the different types of substitute decision-makers, the process by which an individual can become the substitute decision-maker for someone else, and the obligations and restrictions imposed on substitute decision-makers, among other important things.
What is a Power of Attorney?
There is a common misconception among individuals that a Power of Attorney is a person who has legal authority to make decisions on behalf of another person – this is incorrect.
A Power of Attorney is the legal document from which a named individual – the attorney – derives the legal authority to make certain decisions on behalf of another person when that person becomes incapable of doing so. The person that makes the Power of Attorney is the grantor.
An Attorney for Property is an individual to whom the grantor gives the legal authority to make decisions on the grantor’s behalf, with respect to his/her assets, when he/she becomes incapable of doing so. Likewise, an Attorney for Personal Care is an individual to whom the grantor gives the legal authority to make decisions on the grantor’s behalf with respect to his/her care when he/she becomes incapable of doing so.
The grantor can only make a Power of Attorney when he or she is capable of doing so, as provided in the SDA. There are specific criteria that need to be satisfied in order for an individual to be capable of making a Power of Attorney which are both set out in the SDA and outside the scope of this blog.
Another common misconception among individuals is that a person can apply to the Court to become someone’s Attorney for Property or Personal Care – this too, is incorrect. A person cannot apply to the Court to become an Attorney for Property or Personal Care. However, an individual can apply for an Order appointing him or her as an incapable individual’s Guardian of the Property or Guardian of the Person.
The primary difference between, let’s say, an Attorney for Property and a Guardian of Property, is the physical document from which the legal authority to make decisions on behalf of another is derived. While an Attorney for Property derives his or her authority from a Power of Attorney, which authority can only be given when the grantor is capable, a Guardian of Property derives his/her authority from the Court Order appointing him/her as such, and which can only be obtained upon satisfactory evidence that the individual for whom guardianship is sought is incapable.
If you would like a particular individual to have the legal authority to make certain decisions on your behalf if you ever become incapable, you should consider whether a Power of Attorney is right for you. If you are a person with a loved one who has recently become incapable of managing either their finances or certain aspects of their care, you should consider whether you or someone else applying for guardianship is right for your loved one. If you would like to speak to one of our lawyers about making a Power of Attorney or applying for Guardianship, please contact Lauren A. Kason.
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