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.

Some Provinces or Territories use the word "durable" or "enduring" which means the same as "continuing". The exact terminology depends on the Province or Territory.

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

How to use this document?

To make a valid power of attorney, the grantor must be a specific age, which depends on the Province or Territory, but it's usually 18-19 years of age, and they must 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.

Specifically in this document, the grantor will:

• name one or more attorneys for property;

• name 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).

The document must then 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.

Applicable Law

Each Province and Territory will have its own counterpart legislation dealing with powers of attorney. The law details who can make a power of attorney, who can witness a power of attorney, and how many witnesses need to sign. The definitions and the characterization of the people in a Power of Attorney differ based on the Province or Territory. Some Provinces or Territories require lawyers as witnesses to the Power of Attorney. Or it must accompany a lawyer's certificate.

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