Who can witness a Power of Attorney?
Last updated: Sept. 2020
There are specific rules and restrictions about who can witness a Power of Attorney in Ontario. Did you know that Notary Pro offers virtual witnessing services and can provide both witnesses for you? Click here to learn more.
In Ontario, a Power of Attorney is an important document with specific legal restrictions on who can witness the signature of the grantor (i.e., you) and of the attorney (the person you are giving power). These witness restrictions are the law in Ontario and cannot be ignored.
Powers of attorney require execution by the grantor (the person giving the power of attorney) in the presence of two witnesses, each of whom must sign the document as witnesses (Substitute Decisions Act, s. 10(1)). The following people are disqualified as potential witnesses:
- the attorney or the attorney’s spouse or partner;
- the grantor’s spouse or partner;
- a child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child;
- a person whose property is under guardianship or who has a guardian of the person; and
- a person under 18 years of age.
In simple terms: your witnesses generally should not be any family member, children, or your spouse/partner. People such as your neighbours, colleagues or good friends can be witnesses.
Despite these formal witness requirements for executing a Power of Attorney, if there is ever a court challenge, some courts may declare the efficacy of a continuing power of attorney that does not comply with these witness requirements. The happens only “if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so”, as per the Ontario Substitute Decisions Act, s. 10(4)).
If you have any questions about the above restrictions, Notary Pro Canada encourages you to obtain independent legal advice before signing any power of attorney.
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