October 19, 2017

The Importance of Power of Attorney for Property …

and why you need a Power of Attorney for Property.

A Power of Attorney for Property appoints one or more people to act for you (they are called Attorneys, even though they may not be lawyers) in relation to your various assets and liabilities. A Power of Attorney for Property may authorize the attorney to do anything you can do except make a Will. You can restrict the nature of the Power of Attorney, either with respect to its commencement and/or expiry date, or with respect to which of your assets and liabilities the attorney can deal with.

A Power of Attorney can be effective while you are capable and/or incapable. For a Power of Attorney to be effective if you have become incapable there must be a specific provision in the Power of Attorney to this effect.

If you become incapable and you do not have a Power of Attorney for property that survives incapacity the Ontario Public Guardian and Trustee (OPGT) will be “Statutory Guardian”.

Once the OPGT becomes your Statutory Guardian, they assume control over all of your assets and liabilities. They will generally not provide you or family members with information concerning your assets and liabilities or what they are doing on your behalf.

Once the OPGT has become the Statutory Guardian, it is possible for one or more individuals to apply to be appointed as Statutory Guardian. Very typically close family members apply.

The Application to be appointed as a Substitute Guardian is very complicated and requires that you submit a detailed management plan outlining how you intend to deal with the assets and liabilities of the incapable person. The OPGT will consult with other family members before determining whether or not to appoint a Substitute Guardian. The entire process to be appointed as a Substitute Guardian may take 3-6 months. When a Substitute Guardian is appointed, they are generally required to post a bond as security against them misusing the assets of the incapable person. The amount of the bond is based on the assets of the incapable person. The premium for the bond is paid annually and can be expensive.

To avoid the uncertainty and expense associated with Statutory Guardianship, every adult in Ontario is well advised to make sure they have a Power of Attorney for Property which continues to be effective if they become incapable.

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