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We have two types of powers of attorney in Ontario: powers of attorney for personal care, and for financial matters. This post outlines when each type of power of attorney is activated.

  1. Powers of Attorney for Personal Care

What often is not understood is that a power of attorney for personal care only becomes operational or activated when the donor is assessed as incapable of any or all of his or her personal care functions (medical decisions, feeding, dressing, personal care etc.). When a person is assessed as being incapable of one or more of these personal care functions, the power of attorney then becomes activated to advocate for those particular functions.

  1. Powers of Attorney for Financial Matters

Opposite to this is the power of attorney for financial matters. This type of power of attorney becomes activated immediately upon the donor signing the document rather than if/when the donor is assessed as being mentally incapable of managing his/her own financial matters. This raises the confusing scenario of a donor making one investment decision and then having his/her attorney making another investment decision or countermanding the donor’s decision.

A donor of a power of attorney for financial matters can set out in the document itself the condition(s) that must be met before the power of attorney becomes activated. A very common condition is that the donor must be assessed as mentally incapable of managing his/her financial affairs before the power of attorney becomes activated. Another condition might be specific dates during which the power of attorney can be used or certain bank accounts or financial institutions that can be accessed by the attorney.

One size does not necessarily fit all, and it makes sense for a person who is making a power of attorney – for financial or personal care – to discuss different options with his/her lawyer.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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