A power of attorney for property, along with a Will and a Power of Attorney for Personal Care make up a basic estate document package in Ontario. For a discussion of the issues you need to consider in creating a Will, Click Here, and for a discussion of the issues you need to consider in creating a Power of Attorney for Personal Care, Click Here.
The featured image for this blog article is the Basilica of Our Lady Immaculate located in Guelph, Ontario built in 1926.
- What authority does a valid Power of Attorney for property give to the person chosen?
- How do you Create a Power of Attorney for Property?
- What factors should be considered in choosing an Attorney for Property?
- Is an attorney for property is entitled to compensation?
- Key Takeaway
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What authority does a valid Power of Attorney for property give to the person chosen?
Unless restricted by the clear language of the document, the authority given to the person appointed as your attorney is very broad and will include the authority to make most legal and financial decisions that you can make yourself. The one exception is that it does not grant the person you have chosen the power to make a Will on your behalf.
In addition, provided the appropriate wording is used as specified in the Ontario statute authorizing the creation of these documents which is called the Substitute Decision Act (the “SDA”), the authority will survive any subsequent legal incapacity by the grantor. In other words, if you become unable to look after your financial and legal affairs, your attorney will have the full legal authority to do so on your behalf. The only statutory requirement is that the attorney you appoint must be at least 18 years old.
The authority granted in the document can be restricted and in some cases such as those discussed below, it may make sense to appoint different persons with their authority limited to specific functions required by your estate. However, you want to make sure that someone has the authority to deal with all your affairs.
How do you Create a Power of Attorney for Property?
Part II of the SDA specifies how to legally create a power of attorney for property. In summary, the SDA provides as follows with respect to creating these documents:
• you can appoint the Office of the Public Guardian and Trustee as your attorney, but must get their consent to do so (S. 46 (2)). This might be appropriate if you do not have anyone else you are comfortable with appointing as your attorney for personal care;
• a person who provides health care services to you for compensation cannot be your attorney for personal care (unless that person is your spouse, partner, or a relative; S. 46(3));
• you must be at least 16 years old to create an attorney for personal care and have the ability to understand that the person being appointed may need to make decisions for your personal care needs;
• you can appoint more than one attorney to act jointly, and if one appointee predeceases or cannot act for any reason, the appointment of the other(s) remains valid S. 46 (5). Where a joint appointment is made the attorneys must act unanimously:
• you can set out conditions and instructions in the power of attorney which must be followed by the appointed attorney. Given personal care includes decisions with respect to health care, nutrition, shelter, clothing, hygiene, or safety, the document can be used to provide instructions to the appointed attorney(s) on all of these issues; S. 46 (6) and (7);
• The document does not need to have any particular form (S. 46 (8), but must be witnessed by two people both of which must be at least 18 years old, and neither of which can be your spouse or partner or your child, or the appointed attorney’s spouse or partner (S. 48 (1).
Part II of the SDA deals with many other issues relating to powers of attorney for personal care. For further information on these issues you can access this statute at by Clicking Here.
What factors should be considered in choosing an Attorney for Property?
However, given the broad powers an attorney for property is granted under the SDA, the clear implication is that you should have utmost faith and trust in the person you are choosing.
However, trust is not the only consideration. You should also consider whether the person you are choosing has the necessary expertise to deal with your affairs. Everyone is different. For some people, the only thing that your appointed attorney may be required to do is ensure that whatever income you have is deposited to the account where your monthly bills are paid from, and file your annual tax return.
However for other people, especially the self-employed, the tasks and expertise needed may require special knowledge and skill. If this is the case you may want to consider appointing more than one attorney with the scope of authority for each being clearly specified in the documents that grant the power. These documents have to be worded carefully as the general rule is that creating a new power of attorney unless otherwise specified will revoke a prior power of attorney.
Another important consideration is the residency of a potential attorney you have in mind. There is the obvious issue that a person not living in close proximity to you will have problems dealing with matters that you do daily such as picking up your mail but may be faced with other regulatory issues. For example, if a US person is appointed to act as the attorney for property, a Canadian investment advisor must be licensed with the US Securities and Exchange Commission to take instructions from the attorney. This may make it very difficult for the US-resident attorney for property to manage and provide instructions to a Canadian investment advisor.
Another hidden issue lies in the Canadian Income Tax Act’s “associated corporation” rules. If you operate your business via a corporate structure, and you appoint a person to look after your business interests who is also incorporated, this may result in this person’s corporation and your corporation being “associated” which will limit the availability of the small business deduction. This can lead to a situation where the tax rate on your business income jumps from 12.5% for qualifying small business income to almost 50% for non-qualifying income.
Is an Attorney for Property Entitled to Compensation?
Persons fulfilling the function granted under a power of attorney for property, like estate trustees, are entitled to compensation for their services. Section 40 of the SDA codifies the attorney’s right to compensation. It states that “…A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.”
Pursuant to a Regulation enacted under the authority of the SDA, “the prescribed fee schedule” has been set as follows,
a. 3% on capital and income receipts;
b. 3% on capital and income disbursements; and
c. 3/5’s of 1% on the annual average value of the assets as a care and management fee.
These percentages are slightly higher than the usual “rule of thumb percentages” awarded to a trustee or estate trustee, which are typically expressed as 2 1/2% on receipts and disbursements, and 2/5’s of 1% as a care and management fee respectively. However, you can provide whatever you wish as the compensation you wish to pay the attorney in the document itself.
Key Take-Away
The basic estate package in Ontario for every individual consists of a Will, a Power of Attorney for Property, and a Power of Attorney for Personal Care. Having a lawyer create these documents for you is not expensive. However, if you do not have these documents in place when they are needed, or your wishes are not clearly expressed, the cost can be significant to have the legal authority these documents grant determined by a judge on application to a court.
This article has been prepared by Security Plus Law for informational purposes only. It is intended to provide general information with respect to the topic discussed. It is not intended to provide actionable legal advice with respect to any particular fact situation, and we expressly exclude any liability for unauthorized reliance on the contents of this article without first obtaining our written consent. If you need legal assistance with respect to any issue discussed in this article, or would like a consultation with us, complete the request for a consultation of on our web-page, or email us at info@securitypluslaw.com including your name, phone number, and best time to call, and we will get back to you usually within 24 hours.
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