The Substitute Decisions Act

In April, 1995, the Government made changes to the law in Ontario concerning Powers of Attorney via the Substitute Decisions Act ("the Act"). Today, there remains much confusion and uncertainty surrounding Powers of Attorney and the Act.

The following may assist in clearing up some of the misconceptions. 


What Can I Have My Attorney Do?

In a Continuing Power of Attorney For Property, you can give your named Attorney(s) authority to deal with all or some of the following: your business, house, cottage or other real property , bank accounts, stock portfolios. Essentially anything that you own or control, your named attorney can deal with. This authority may be exercised when you are incapacitated (eg. for medical reasons), or just unavailable (eg. out of the country).

In a Continuing Power of Attorney For Personal Care, you can appoint someone to make decisions dealing with YOU, but only in the event that you are not capable of making them for yourself. 


If I Have a Will, Do I Need a Power of Attorney?

Yes!  A Will is of no legal effect until you die, so merely having a Will does not do away with the need for a Power of Attorney. A Power of Attorney is the source for legal authority over your assets and affairs while you are alive.

In addition, just because you are married, your spouse does not have legal authority to make decisions in your place, or sign your name to legal documents. 


Isn’t My Attorney My Lawyer?

Not necessarily. In the U.S., the terms “attorney” and “lawyer” are used almost interchangeably.  Not  so in Canada. The Canadian legal system is based on the English model, not the American. Here, a lawyer may also be referred to as a barrister or a solicitor, but not as an attorney.

While you may have your lawyer as your named Attorney in a Power of Attorney, more often, people will name a family member or a close friend. Whoever you appoint, it must be someone that you trust not to abuse the authority over your assets and affairs. 


What About a Living Will?

The concept of a Living Will has been around for some time. It is a written expression of your  wishes for your future personal care (as  distinct from your assets and affairs), should you be incapable of making decisions. 

Prior to the aforementioned changes in April, 1995, such documents were not legally binding in Ontario. The provisions of the Act allow people to prepare a legally enforceable document, called a Personal Care Power of Attorney.

In it you can appoint someone you trust to oversee your personal care if you are no longer capable of expressing your own wishes. In addition, you can specify the type of care you wish to have.  For example, if you are opposed to “heroic measures” or the use of machines to keep you alive, you can set this out for your caregivers and doctors to follow. 


Is My Old Property Power of Attorney Still Valid?

Ontario has had Power of Attorney legislation for many years.  Many people have such a document designating a person or persons to look after assets and affairs should they be alive, but unable, whether by choice or circumstance to manage their own affairs.

To be valid, these Powers of Attorney must have been executed prior to October 3, 1995, contain an express statement that they may be used during any subsequent legal incapacity, and have been signed in accordance with the provisions of Ontario’s Powers of Attorney Act (1990).

Have your lawyer look at it for you.  Better to be safe than sorry ! 


What Happens If I Don’t Have a Power of Attorney?

 If you do not have a Continuing Power of Attorney for Property, either the Government will step in to “manage” your affairs for you via their Public Guardian and Trustee’s office, or a family member or friend may apply to the court, in certain circumstances, to be appointed to assume this responsibility.

Having the Government “manage” your affairs is enough to give most people sleepless nights, and the court application can be both costly, and time-consuming. 


What Should I Do?

If you do not have a Power of Attorney, you should get one.

It is strongly recommend that you consult with a lawyer. While the Government and certain stationers and others are offering “do-it yourself” kits, you run the risk of finding out after someone is in a coma, has Alzheimer’s, or some other legal or mental incapacity, that their Power of Attorney was not prepared correctly, and is invalid.

Most lawyers charge a very reasonable fee for a Power of Attorney, and it’s a small price to pay for peace of mind !

While you are consulting with a lawyer, I also recommend that you have your Will reviewed. If you do not yet have a Will, you should get one as part of thorough estate planning.

Proper preparation makes things so much easier on loved ones in the event you are incapacitated, or when you die!