Continuing Power of Attorney for Property

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A Continuing Power of Attorney for Property is a legal document in which you may give someone else the legal authority to make decisions about your financial affairs for you.
The person who you appoint is called "the attorney" yet does not have to be a lawyer. The power of attorney is called “continuing” because it can be used when you are no longer mentally capable of making your own financial decisions. You may decide the effective date of the continuing power of attorney of property. It may be immediately or when you become incapable.

Appointing your own attorney helps to ensure that your wishes are respected. It may be one or more trusted person(s) whom you trust and understands you and will honour your intentions. They may help gift your remaining assets to family members and follow your gifting preferences outlined in your will or specified in the power of attorney. Conditions and restrictions may be included.

You may appoint one or more attorneys. If you appoint more than one attorney, you may request that they decide on your financial affairs together ("jointly") or separately (without the approval of the other) as well as together ("jointly and severally"). If you become mentally incapable and did not appoint an attorney for property, the law determines this person (called a "statutory guardian") or the Public Guardian and Trustee or the court may appoint someone for you as the last resort after much time and legal fees are spent.

The following people may NOT act as your attorney, your: landlord, social worker, counsellor, teacher, advocate, doctor, nurse, therapist or other health care provider, homemaker or attendant, or any person who provides care for you in the place where you live.

If your Continuing Power of Attorney is silent on the matter of payment, your attorney will be entitled to: 3% of money received, 3% of money paid out on your behalf, and 3/5 of 1% of the average annual value of your assets. If you have more than one attorney, they will split this statutory payment amount. Or, you may specify the amount of payment or prohibit collection of payment.

You are able to make a Continuing Power of Attorney of Property if you are over 18 years old and:
a) understand the property you own and its approximate value;
b) is aware of obligations you owe to any dependants;
c) understand that your appointed attorney will be able to handle your financial affairs, except create your will;
d) understand the attorney must account for his/her actions;
e) understands that you may revoke the power of attorney;
f) understands that the attorney may cause your property value to grow or decline; and
g) understand that the attorney may misuse his/her authority.

The attorney is required to act honestly and diligently for your benefit, explain to you (even when you're incapable) of what the attorney is doing and keep accounts of all financial transactions. The attorney is obligated to make expenditures that are reasonable and necessary for your care and the care of your dependants to whom you owe a legal obligation.

The Continuing Power of Attorney of Property is terminated when it is updated, either the attorney or you passes away, or the attorney becomes incapacitated or resigns and there is not joint or alternate attorney.

Landmark Law Professional Corporation may assist in preparing your Continuing Power of Attorney for Property and with your Wills and Estates Planning.

Disclaimer: This article does not contain legal advice and only provides general information. It is not intended to replace advice from a qualified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this article before making decisions. Use of this article does not establish a lawyer-client relationship.

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Winnie J Luk, BA, JD, MBA, founder of Landmark Law, is a seasoned Ontario lawyer practicing in Wills and Estates, Real Estate, and Business Law and frequent speaker of free legal education seminar.