Wills & Power of Attorney for Property
Suppose you or a family member suddenly became mentally incapable because of age, disease or injury. What would happen to your bank accounts, bills or real estate?
Making an advance power of attorney for property (POA) reduces confusion and expense to next-of-kin if you or someone you care about loses their ability to make their own decisions.
Without a POA, an Ontario court judge could appoint a third party guardian of your property. Your family could spend thousands of dollars and experience long delays managing your finances and paying your bills.
What a Power of Attorney for Property Is
Your POA for property is a financial manager who acts in good faith, on your behalf. Their decisions affect your quality of life, ensuring you live the best life possible within your financial means. They are required to consult with you while you are mentally capable and with supportive friends and family on care decisions affecting you.
Your appointee must ensure you have what is reasonably needed for:
- Your own care, support and education.
- Dependants' care, support and education.
- Any remaining obligations you may have.
You can direct your POA to give gifts to charities or friends and relatives, including loans, as long as they don't interfere with your own basic needs. Axess Law's Wills and Estate attorneys can explain rules around charitable giving and loans.
When a POA is Needed
POAs are made while you are mentally capable of caring for your own property. Being incapable means:
- you can't understand information necessary to make decisions
- or you can't appreciate the consequences of decisions or inaction.
You obviously can't foresee all the consequences of every decision you make. Your decisions must be "reasonably foreseeable". In other words, most people would realize what could happen.
How Continuing Power of Attorney Works
You can limit a POA's authority, such as having them manage your bank account when you are elderly. Or you can make a continuing power of attorney, allowing your appointee to manage your property even if you are mentally incapacitated. With a few restrictions (see What Your POA Can't Do), a POA can be authorized to do anything you would do if you were capable of it yourself.
Who Can Be POA for Property
Any competent adult over 18 can be granted power of attorney for property in Ontario. "Competent" means they understand their obligations, including that the POA can be revoked at any time. Your appointee should be accountable, prudent and diligent, honest and have integrity. You can make joint appointments or appoint a successor in case your POA resigns or predeceases you.
What Your POA Can Legally Do
Your POA can legally do anything in their POA for property documents. (Axess Law can advise you on how to write a POA for property that protects your interests.) Decisions they can make include:
- paying bills
- making or managing financial investments
- opening or closing bank accounts
- collecting debts
- buying goods and services like new furniture or a new roof
- applying for pensions and other benefits
- maintaining, selling or renting real property like a home, cottage or land
- defending you in court or starting legal actions.
What POAs Can't Do
With a POA, you keep ownership of personal and real property, like the deed to your home. Your POA is authorized to sell that property if necessary to manage your finances, but as long as you are mentally capable, they must consult with you first.
You are liable for your own financial obligations. But your POA can be declared negligent by a court if they fail to pay your bills or collect debts you are owed.
POAs can't mingle your money with their own or borrow or use your money for personal purposes unless you agree in advance. They are legally required to keep accurate records and "pass the accounts" (submit their records to the court) on demand or if legally challenged in court. Your records must be kept confidential unless a court orders otherwise or it is necessary to manage your financial affairs.
Your POA can't write your Will, make decisions about it or decide how to dispose of assets you leave to beneficiaries. Only you can write a personal Will in Ontario. You must appoint an estate trustee, personal representative or executor independently of your POA for property to distribute your estate after you die.
Challenging Power of Attorney Decisions
Next-of-kin, close friends or anyone concerned about your POA's conduct can address the court if they feel you are being unduly coerced or influenced or your property is being mismanaged. The court may order the POA to pass the accounts for its scrutiny, supervise the POA's decisions or set aside a POA and appoint a guardian for property.
Paying a POA for Property
Unless your POA volunteers their services, their fees are based on a schedule set by the court. You can include the compensation amount in POA documents or your attorney can draw fees monthly, quarterly or annually from your resources.
Current fees are 3% of capital and income received, plus 3% of capital and income disbursements and 0.6% of your assets' annual average value (called a care and management fee). A POA can apply to court to have their fees increased if they believe they are inadequate for the services provided.
Ontario courts expect POAs who receive compensation to exercise the same care, diligence and skill as any business manager responsible for others' property. A volunteer POA is required to exercise the same care, diligence and skill that you would if you managed your own financial or business affairs.
Writing a Will with POA
Undecided about a POA for property? Axess Law's Ontario Wills and Estate lawyers can answer any questions you have and draft a personal Will and prepare a POA for property at the same time. A Will and POA for property costs just $249.99 and up. You can make a Will separately for $199.99 or a POA for property without a Will for just $69.99. You pay $99.99 to make POAs for both property and personal care..
Make a POA and Will Today
Making a POA and Will have never been easier. Axess Law's Ontario Wills attorneys can consult with you about your wishes using remote video conferencing or you can meet with Wills lawyers near you at any of our Greater Toronto Area law offices. Use our online booking form or call 1-647-479-0118 for an appointment.