A Power of Attorney is a legal document where a person (“Grantor”) authorizes another person (“Attorney”) to manage property. [Note that in this case “attorney” does not necessarily mean a person authorized to practice law.] A Power of Attorney is usually activated in the event you are unable to manage your own affairs due to physical or mental issues.
Under the Ontario Substitute Decisions Act, 1992, a continuing Power of Attorney must describe itself as “continuing” and expressly state the intention is for use of the power during the Grantor’s incapacity. If it does not specify “continuing,” the document becomes void.
Through this Continuing Power of Attorney, you can appoint one or more attorneys and one or more alternates. Alternates are in case the original attorney is not willing or is unable to perform the duties. If there are multiple attorneys, each one should have specific and designated authority and know how the decisions are to be made. Sometimes a person becomes incapacitated but has not executed a Continuing Power of Attorney. Then someone, usually a close relative, applies to the Court system for that authority.
The attorney is under the legal duty to only act in the best interests of the Grantor, to account to the Grantor, act with reasonable care, must not act in conflict of the grantor or his/her wishes, and must not make secret profits. All of this combined is referred to as a fiduciary responsibility.
There are certainly advantages for someone to create a Continuing Power of Attorney:
> The Grantor chooses who they want for the attorney and any substitutes.
> Restrictions can be issued, like only dealing with certain things or how to handle specific property.
> Stating just when the Continuing Power of Attorney becomes effective.
> Avoiding the hassle, time and expense of going to court for the Power of Attorney.