What Happens If You Don’t Have a Power of Attorney in Ontario

Many people think of Powers of Attorney as an afterthought, or an “add-on” when making a Will. But Powers of Attorney are just as important as your Will, and arguably more urgent. While your Will only takes effect after you die, your Powers of Attorney protect you while you’re still alive.

A Power of Attorney (POA) is a legal document that gives someone else the authority to make decisions for you, particularly if you are no longer able to make them for yourself. In Ontario, there are two types of POAs, each serving a different purpose:

1. Power of Attorney for Personal Care

This document gives someone authority to make decisions about your health, housing, and other personal matters if you become incapable. For example, if you’re in a coma or develop dementia and can’t understand or appreciate the consequences of your decisions, your attorney for personal care steps in.

2. Continuing Power of Attorney for Property

This document allows someone to manage your financial affairs, including paying bills, managing bank accounts, or selling property. This can apply both while you have capacity (at your direction, if you allow this) and also if you become mentally incapable.

These two documents are completely separate. You can choose the same person for both roles, or you can appoint different people, depending on your circumstances.

What Happens If You Don’t Have a Power of Attorney?

In Ontario, if you lose capacity without a POA, the situation becomes much more complicated for your loved ones.

For Personal Care Decisions:

If you haven’t appointed an attorney, the Health Care Consent Act provides a list of people who can give or refuse consent on your behalf, in order of priority:

1. Court-appointed guardian of the person

2. Attorney for personal care

3. Representative appointed by the Consent and Capacity Board

4. Spouse or partner

5. Child or parent

6. Sibling

7. Any other relative

8. The Public Guardian and Trustee

In many cases, a family member can step in to make decisions about your treatment. However:

• This authority only applies to certain medical and treatment decisions, and may not have the scope to allow your family member to make all the personal care decisions that you require (e.g. housing or personal support services)

• The person with priority under the law may not be the person you would have chosen

• If there is disagreement, or someone outside the priority list wishes to act, they must apply to court to become your legal guardian

For Financial Decisions:

This is where things become even more difficult.

If you become mentally incapable and you haven’t appointed an attorney for property, no one (not even your spouse, adult child, or parent) has the automatic right to manage your finances.

This means no one can:

• Access your bank accounts

• Pay your bills

• Manage your investments

• Sell or refinance your home

In this case, someone would need to apply to court to be appointed as the guardian of your property. In the meantime, your finances may go unmanaged.

The Cost of Not Planning Ahead:

1. Public Disclosure of Private Information

A guardianship application must include detailed personal and financial information such as your assets, income, expenses, debts and medical information. Once filed with the court, this information becomes part of the public record, which anyone can access.

2. Management Plan Requirement

The person applying must also prepare a detailed Management Plan, explaining how they intend to manage your finances. This plan must be followed unless permission is granted to change it later - often requiring another return to court.

3. Delay and Legal Costs

Applying to court takes time. During that time, no one may be legally able to pay your bills or make urgent financial decisions on your behalf. There are also legal fees, court filing costs, and ongoing reporting obligations to the court.

Avoid the Burden on Your Family

A Power of Attorney is a simple but powerful tool that can spare your loved ones enormous stress and legal costs. It allows you to choose someone you trust, rather than leaving it to a judge - or worse, leaving your family to argue over who should take control.

It also ensures that your private health and financial information stays private, rather than being disclosed in a public court proceeding.

If you would like to make a Power of Attorney or have any questions, please contact us to schedule a consultation

This blog post is for informational purposes only and is not intended to provide legal advice. If you require legal assistance, before taking any action you should contact us or another qualified lawyer to discuss your situation.