Nelligan News
Reading Time: 2 minutes

The Ontario Substitute Decisions Act establishes two distinct powers of attorney: for personal care, and for property. A power of attorney for personal care only becomes activated when the person providing (or wishing to provide) treatment or personal care to an individual determines that they are not able to make their own treatment or personal care decisions.

On the other hand, a power of attorney for property is activated immediately upon it being signed, unless it contains a restriction or condition stating that the power of attorney for property will not be activated until some future event. In most cases, this future event is the donor being assessed or determined to be incapable of managing his or her own property. Such a conditional power of attorney is called a “springing power of attorney”.

A springing power of attorney gives comfort to the donor. He knows that until a determination of incapacity is made, he will be able to deal with his investments and property without any interference by his named attorney. However, in some cases this can lead to uncertainty.

It is not an uncommon situation to have a donor with diminished capacity still maintaining that he is perfectly able to manage his own financial affairs, when clearly he should not be doing so.

Unless the donor is willing to have his capacity assessed, the donor’s attorney and family are in a dilemma. They can either: 1) let the donor continue with his misguided belief that he is capable; or 2) after failed attempts to convince the donor that he is incapable, apply to the Court for an order to have the donor assessed and then a guardianship order over the donor’s property. Needless to say, the Court applications are expensive and very disruptive to the family.

While a springing power of attorney makes sense to a lot of people, there is also a risk that it will delay an attorney being able to act on the donor’s behalf. If you want to know more about your options – contact us and we will be able to assist you.

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.

Have Questions?

Enjoy this article?
Don’t forget to share.
Share on facebook
Share on twitter
Share on linkedin
Share on email

Related Posts

Real Estate and Development
Blog
Reading time: < 1 mins
Bryan Thaw on Behind the Headlines
Watch as Bryan Thaw discusses the pandemic’s effect on commercial real estate with Michael Curran of the Ottawa Business Journal,[...]
Real Estate and Development
Blog
Reading time: 3 mins
So You Want To Be A Landlord? A Primer In Buying A Tenanted Property
If you decide to purchase a residential property with a tenant occupying the property, there are some important procedures and pitfalls that should be considered. In our latest Real Estate blog post, Bryan Thaw outlines the key things a buyer should keep in mind.
Real Estate and Development
Blog
Reading time: 4 mins
Force Majeure and Real Estate Transactions
Closing real estate transactions can be a stressful and lengthy process. With a record-breaking one million jobs lost across Canada[...]