Two Very Different Ways of Signing Documents
One of the more interesting legal questions that occasionally arises in Ontario real estate practice is whether a person may sign a document on behalf of someone else.
At first glance, the answer appears simple. After all, clients frequently appoint attorneys under Powers of Attorney to sign documents for them. But what if the client has personally reviewed the Agreement of Purchase and Sale, understands every provision, and simply asks the real estate agent to sign the client’s name?
The answer lies in understanding two very different legal concepts: the common law doctrine of “amanuensis” and the statutory authority granted by a Continuing Power of Attorney for Property.
Although both involve one person signing for another, they arise from entirely different legal principles.
The Amanuensis Doctrine
The word amanuensis derives from the Latin a manu, meaning “by hand.”
Historically, an amanuensis was simply a person who wrote or signed on behalf of another. The doctrine developed at common law to recognize that a signature need not always be physically written by the person whose name appears on the document.
Where the principal has:
- reviewed the document;
- understood its contents;
- decided to execute it; and
- specifically directed another person to write the signature,
the person holding the pen is acting merely as the principal’s physical hand.
The amanuensis exercises no independent judgment. Every legal decision has already been made by the principal.
In law, the signature is treated as the signature of the principal.
A Continuing Power of Attorney for Property
A Continuing Power of Attorney for Property is fundamentally different.
Rather than acting merely as another person’s hand, the attorney acts pursuant to authority granted by statute and by the written Power of Attorney itself.
Ontario’s Substitute Decisions Act, 1992 authorizes an individual to appoint another person to make decisions respecting the management of the grantor’s property. Sections 7 through 10 govern the creation of a Continuing Power of Attorney for Property, including the requirements for its validity and execution.
Unlike an amanuensis, an attorney may:
- negotiate contractual terms;
- make decisions within the authority granted;
- execute legal documents;
- complete transactions; and
- bind the grantor while acting in a representative capacity.
The attorney is not merely writing another person’s name.
The attorney is exercising delegated legal authority.
Accordingly, documents are ordinarily signed in a representative capacity, such as:
- “John Smith, by Mary Jones, Attorney for Property”, or
- “Mary Jones, as Attorney for John Smith.”
The signature itself discloses that the person signing is acting under legal authority granted by a Power of Attorney.
The Essential Difference
The distinction can be summarized:
- An amanuensis signs because the principal has already made every decision. An attorney signs because the law authorizes the attorney to make or implement those decisions on the principal’s behalf.
That distinction is critical.
The authority of an amanuensis comes from the principal’s immediate instruction.
The authority of an attorney comes from a written legal instrument executed under the Substitute Decisions Act.
Why This Matters in Real Estate
Consider two examples.
Example One
A purchaser has broken an arm and is physically unable to hold a pen.
The purchaser carefully reviews the Agreement of Purchase and Sale and says:
“Please sign my name exactly where I indicate.”
If another person simply writes the purchaser’s name without exercising any discretion, that person may arguably be acting as an amanuensis.
Example Two
The purchaser is travelling overseas and cannot participate in negotiations.
Instead, the purchaser’s daughter holds a valid Continuing Power of Attorney for Property. She reviews the offer, negotiates amendments, decides whether to accept the terms, and signs on behalf of her father.
She is not acting as an amanuensis.
She is exercising statutory authority granted under the Substitute Decisions Act.
The Regulatory Issue for Real Estate Registrants
This distinction has practical consequences for Ontario real estate professionals.
A Continuing Power of Attorney is a written legal document. Its existence can be verified. The attorney’s authority can be reviewed. The scope of the delegated powers can be examined.
An alleged amanuensis, however, may have nothing more than an oral instruction from the client.
If a dispute later arises, the registrant may be required to prove:
- that the client reviewed the final version of the document;
- that the client fully understood its contents;
- that the client expressly authorized the signature; and
- that the registrant exercised absolutely no independent judgment.
Those issues quickly become questions of credibility.
From a regulatory perspective, they also raise concerns regarding document integrity, authentication, consumer protection, and professional accountability.
Modern Practice
Electronic signature platforms have largely eliminated the practical need to rely upon the historical amanuensis doctrine.
They provide a secure and auditable record demonstrating that the client personally reviewed and executed the document.
Where another person genuinely requires legal authority to make decisions for the client, a properly executed Continuing Power of Attorney for Property provides a far more reliable legal foundation than an oral instruction to sign.
Considerations
The common law doctrine of amanuensis remains part of Ontario law, but it performs a narrow function. It validates the physical act of signing where the principal has already made every legal decision.
A Continuing Power of Attorney for Property serves a much broader purpose. It authorizes another person to make decisions, manage property, and execute documents in a representative capacity under the authority of the Substitute Decisions Act, 1992.
For Ontario real estate professionals, appreciating this distinction is more than an academic exercise. It helps explain why two signatures that may look identical on paper can rest upon entirely different legal foundationsand why understanding the source of the signatory’s authority is essential to protecting both the client and the integrity of the transaction.
Brian Madigan LL.B., Broker