Ontario Continuing Power of Attorney

If you don’t have a Power of Attorney for Property, other people cannot legally manage your finances (not even your spouse). Family members would have to retain a lawyer or undergo a lengthy court process to be appointed as guardians.

If nobody steps in, the government can appoint the Office of the Public Guardian and Trustee to handle your finances for you. Having a CPOA in place ensures that your financial affairs are carried out according to your wishes.

Unless you limit their authority, your Attorney can do almost anything you can do with your finances and property. In addition to the things you own, “property” also includes the things you have the legal right to use (e.g., a leased car or rented apartment).

Attorneys can also sign cheques, buy or sell your property, do your banking, make purchases, and more. This gives them enormous power, so choose carefully.

Note that your Attorney does not become the owner of your assets, but only has authority over managing them. Importantly, even after granting someone CPOA, you can continue to make your own decisions so long as you are mentally capable.

To learn more about an Attorney’s restrictions and what you can do to ensure they don’t abuse their power, see our CPOA guide.

Note: There are limits to what your Attorney can do. They cannot make or change your will, and they cannot create a new Power of Attorney for you.

If you have multiple Attorneys, they must make decisions together. This can serve as an extra buffer, but it can lead to disagreements or delays if decisions must be made jointly.

If you want your Attorneys to have the ability to act independently, state in your POA that your Attorneys can act “jointly and severally”. This sentence allows one Attorney to make decisions without requiring approval from the other. This can be helpful when urgent decisions must be made and time is of the essence.

Your Attorney has certain legal responsibilities that they must follow. These duties include the following:

• Always act in your best interest
• Comply with the legal requirements in your jurisdiction
• Keep records and manage assets according to the directions you provide

A Continuing Power of Attorney legally allows your Attorney to act right away by default, unless the document clearly states otherwise. This doesn’t mean you lose control while you’re mentally capable; you can still manage your own finances.

You can choose whether your CPOA:

• Takes effect immediately, or
• Takes effect upon incapacity, or
• Takes effect on a specific date

A CPOA remains valid if you become mentally incapacitated (mentally incapable). See our blog to learn more about the definition of mentally capable in Ontario.

By contrast, a Non-Continuing Power of Attorney (also known as a General POA) works slightly differently. It only allows your Attorney to manage your finances while you’re mentally capable. You can choose when it takes effect, but if you become incapacitated, a Non-Continuing POA ends and is no longer valid.

It’s typically used for temporary circumstances, like when you need to appoint an Attorney temporarily while you’re on vacation or sick.

If you need to draft a Non-Continuing Power of Attorney for Property, you can use our free template.

Drafting a Continuing Power of Attorney for Property is easy with our free, fillable CPOA template. We’ve outlined the essential elements and information you’ll want to include in your CPOA below.

Elements Your CPOA Must Contain

To be valid, your Continuing Power of Attorney for Property must have the following elements:

• Be called a Continuing Power of Attorney or state that it allows your Attorney to continue acting for you if you become incapacitated;
• Name one or multiple Attorneys for your property;
• Be signed and dated by you (with wet ink); and
• Be signed by two witnesses (with wet ink), who watch you sign the document.

Details to Include in Your CPOA

Include the information below in your Continuing Power of Attorney for Property:

• Granting party’s details: Full name, address, and contact details.
• Authorized party’s details: Full name, address, and contact details.
• Authorization scope: A clear description of the financial rights, permissions, or powers granted to the Attorney.
• Substitute Attorney’s details: Full name, address and contact details of the substitute Attorney in case the original one cannot fulfill their duties.
• Limitations: Note any restrictions you’d like to place on the Attorney’s permissions.
• Date of effectiveness: Add the date you’d like the Attorney to step in. This doesn’t prevent you from handling matters if you’re capable.
• Duration: If applicable, add a time frame during which the authorization is valid
• Signatures: The granting party, Attorney, and witnesses must sign and date the CPOA.
• Compensation: Attorneys are paid at a rate set out by the law unless you indicate otherwise. The current rate is 3% of funds received and paid, and 60% of 1% of an asset’s average annual value.

Note: You can choose whether your CPOA takes effect immediately upon signing or on a specific date.

Continuing POA Requirements in Ontario

To be valid, your Continuing Power of Attorney must meet the following criteria:

• Be called a Continuing Power of Attorney, or state that the Attorney’s authority continues if you become mentally incapable;
• Have physical, hand-written signatures;
• Name one or more individuals to act as your Attorney for finances;
• Be signed and dated by the person gratning CPOA; and
• Be signed by two eligible witnesses.

Note: It’s a good idea to review your Continuing POA regularly. Ensure it stays current with life changes and that instructions are up to date.

To create a Continuing Power of Attorney for Property in Ontario, you need to:

• be 18 years of age or older;
• be mentally capable of giving Power of Attorney at the time of signing; and
• sign the CPOA before two witnesses who must also sign it.

Being mentally capable of giving Continuing Power of Attorney for Property means that:

• you understand the scope of authority your Attorney will have;
• You know your Attorney must account for all the decisions they make about your property;
• you know what property you own and its approximate value;
• you understand that there is a possibility that your Attorney could misuse the authority;
• you understand that if you are capable, you may cancel your power of Attorney at any time;
• you understand that unless your Attorney manages your property prudently, its value may decrease; and
• you are aware of your obligations to the people who depend on you financially.

You must have two eligible witnesses sign your Continuing Power of Attorney. The witnesses cannot be:

• Your spouse, partner or someone you treat as a child
• Your Attorney or the Attorney’s spouse or partner
• Anyone under 18
• Anyone who has a Guardian of Property
• Anyone who has a Guardian of the Person

Who Cannot Witness Your Continuing POA in Ontario?

You cannot have any of the following individuals witness your CPOA:

• Your spouse or partner
• Your child, or someone you treat as a child
• Your Attorney
• Your Attorney’s spouse or partner
• Anyone under the age of 18
• A person who has a guardian of property
• A person who has a guardian of the person

Having your Power of Attorney notarized is best practice; the Government of Ontario actually recommends having a notarized copy. A notarized CPOA can help things move faster, giving institutions confidence in its authenticity. You must have this document notarized in person.

Further, some institutions require a notarized copy of the CPOA before recognizing an Attorney’s authority. Notarization provides additional assurance of an Attorney’s authorization, reducing the risk of fraud.

Certain institutions, like banks, may refuse to recognize a POA even if it’s valid. They may require a notarized copy before accepting it.

You can have your Continuing Power of Attorney for property witnessed online in 7 minutes with NotaryPro’s convenient virtual witnessing service. We provide both witnesses; all you have to do is join the meeting with a printed copy of your CPOA. See how easy virtual witnessing can be today!