Wills & Power of Attorney in Ontario—Why They Matter

Talking about what happens upon a person’s death or when they possibly lose capacity (either physically or mentally) is an uncomfortable conversation and often leads to people not prioritizing the preparation of their Will or Powers of Attorney. Oftentimes, people will only think about these things when something unexpected happens, such as the anticipated passing of a family member or a friend, or an unforeseen medical issue that leaves them mentally impaired.

In these moments, the absence of clear written instructions can become a crisis in and of itself. Uncertainty and delays are inevitable, unnecessary, and avoidable, and disputes may arise as a result. Why not spare your family or friends the added stress and heartache by preparing clear written instructions that reflect your expressed wishes through a Will and Power of Attorney. 

Wills and Powers of Attorney prevent unnecessary delays and stress and provide for a clear path in times of uncertainty. A Will and Powers of Attorney do not predict every future scenario but rather create a legal foundation and framework to handle your affairs in accordance with your wishes when life shifts in ways you cannot plan for, either upon one’s passing or during times of incapacity. and . 

Foote Law can assist you in providing legal advice and preparing a Will and Powers of Attorney to ensure that your wishes are clearly documented in a legal and binding document  in order to reduce added stress and uncertainty during difficult times.

What is a Will and Why Does it Matter?

In Ontario, a Will is a legally binding document that expresses and instructs on how one wishes their estate and assets to be disbursed upon their passing. By preparing a Will one can reduce unnecessary stress and confusion for their grieving family and friends and provide clear instructions on how they want their estate to be disbursed.

When someone passes away without a Will (otherwise known as intestate), Ontario legislation will dictate how their estate will be divided, which is rarely aligned with what the deceased’s wishes would have been had they completed a Will. Passing without a Will can also lead to increased fees, probate, and potentially the distribution of your estate in ways that the deceased would have otherwise not wanted. For example, children may inherit in a way that does not reflect the deceased’s intended family arrangements, or someone you barely speak to could end up with a portion of your assets.

A Will lets you remain in control and choose:

• Who you want to manage your estate upon your passing (your estate trustee)
• How, when, and to whom your assets and property will be distributed 
• Who you wish to care for (or be guardian of) for your minor children
• What, if any, specific gifts or cash legacies will be gifted and to whom
• Whether you have specific instructions with respect to a funeral, cremation, burial, etc. 

A clear and legally binding Will reduces stress, confusion, and potential disputes by providing clear instructions as to your estate administration.

What is a Power of Attorney and Why Does it Matter 

While a Will is a legally binding document that takes effect upon one’s passing, a Power of Attorney on the other hand, takes effect while someone remains alive, but is incapacitated and unable to make decisions or act independently for whatever reason. Think of a Power of Attorney as a “Living Will” – if someone is incapacitated, either physically or mentally, the person named as their Attorney will have the legal authority to make decisions on the incapacitated person’s behalf. 

Mental incapacity could be a result of an illness, an accident, a cognitive decline, etc. Whereas physical incapacity could be as a result of a physical disability or simply because you are temporarily outside Ontario for six months out of the year. 

In Ontario, there are two different types of Powers of Attorney:

1.Continuing Power of Attorney for Property

A Continuing Power of Attorney authorizes the person or people you have designated as your Power of Attorney to handle your financial matters, like paying bills, managing accounts, signing documents, and dealing with property, while you are otherwise incapacitated.

The reason it is called a “Continuing” Power of Attorney is because this document can be used for short periods of time (e.g., if you are travelling and unable to tend to your financial matters) or for long periods of time (e.g., if you remain incapacitated for an indefinite period of time). 

This document can come into effect when someone either becomes incapacitated or if they have otherwise given authority for the person named as the Power of Attorney to act in accordance with the document. 

2.Power of Attorney for Personal Care

A Power of Attorney for Personal Care authorizes the person or people named as the Power of Attorney to make medically related decisions on your behalf while you are incapacitated. This may include decisions such as day-to-day medical decisions, daily routines, providing consent to or refusing medical treatments, etc. 

It is important to discuss your wishes, plans of care and any medically related decisions that are important to you with your named Power of Attorney prior to losing capacity to ensure your trusted attorney is aware of your expressed desires in advance of any unforeseen circumstance that may prevent you from making the decision yourself. 

What are the risks of not having a Power of Attorney?

Family members do not automatically obtain authority to make medical decisions or tend to one’s financial matters when a loved one becomes incapacitated. Some of the risks of not having a Power of Attorney for Personal Care or Continuing Power of Attorney for Property may include: 

• The risk of losing control over your own medical or financial affairs
• Mismanagement of your medical or financial affairs
• Banks may freeze accounts and assets
• Increased costs and court-appointed decision-makers
• Increased family stress and potential disputes 
• Medical decisions being delayed or mismanagement without a designated decision maker, etc. 

By preparing a legally binding Power of Attorney for Personal Care and a Continuing Power of Attorney for Property, people can reduce the risks, costs, stress, and likelihood of mismanagement of the medical and financial affairs when the time comes that they are unable to manage or make these decisions for themselves. Powers of Attorney ensure you remain in control of your own life. 

Why You Should NOT Use Online Power of Attorney Templates 

Ontario residents can find online Power of Attorney fillable forms, kits, and templates, sometimes free of charge! While these may be a good resource to get started thinking about the topic, they do not come without risks. The issue is not the reduced cost or convenience of an online document, but rather the lack of legal advice specifically tailored to your unique circumstances.

Some common risks of using online precedents include:

• Language and legislation used from other jurisdictions that do not apply in Ontario
• Improper signing and witnessing of the Power of Attorney leading to it being deemed invalid
• Incomplete instructions or missing information that do not account for specific personal circumstances and that leave the Attorney guessing
• Outdated language that no longer reflects Ontario’s legislation, increased costs, potential for family conflict, etc. 

Choosing the Right Power of Attorney to Name 

The person or people designated as your power of attorney, whether it be for property or personal care, will have the authority to make important decisions that can impact your life during times when you are unable to make decisions yourself.

The role of your Power of Attorney carries significant legal responsibility and can greatly impact your life. Choosing the right attorney, who you trust to make decisions in accordance with your wishes, is critical.

Some things to consider when choosing an appropriate Power of Attorney to name may include:

• How well the person (or people) are already aware of your personal circumstances, either medically or financially
• If you trust the person (or people) to make decisions in accordance with your wishes
• Whether the person (or people) can remain calm and make decisions under pressureThe person’s (or people’s) ability and comfort level in dealing with possible third parties (e.g., banks, doctors, or having end-of-life discussions)
• A person’s (or people’s) personal circumstances, such as distance, workload, health, and age, may limit their ability to act on your behalf

The Role of Lawyers in Preparing a Will and Power of Attorneys

Wills and Powers of Attorney are legally binding documents that must meet Ontario’s legal requirements and accurately reflect an individual’s intentions. 

The lawyers at Foote Law will take the time to understand your unique circumstances, provide legal advice, and answer any legal questions you may have before carefully drafting a Will and/or Powers of Attorney that accurately reflect your expressed wishes. 

When should you update your Will or Power of Attorney? 

Whenever a major life event or unforeseen circumstance takes place, it is a good time to revisit and possibly update or amend your Will and Power of Attorney. 

These circumstances may include: 

• Upon a separation or divorce;
• The birth (or adoption) of a child;
• The death of someone named in your documents;
• Significant changes in the assets you hold;
• A change in your health or personal circumstances, etc. 

If you or a loved one do not yet have a Will or Power of Attorney, or need to update existing Wills or Powers of Attorney, Foote Law is here to help. Foote Law will provide sound legal advice, answer any questions you may have, and prepare legally binding documents that allow you to remain in control of your life during times of uncertainty.
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