A common practical issue arises when an attorney for property is temporarily unavailable due to travel, illness, or other commitments.
For example, A grants B a Power of Attorney for property, and B will be away for six weeks. The question then becomes: can B simply appoint C to act under a “substitute Power of Attorney”?
In Ontario, the answer is generally no, but with important nuance.
1. A Power of Attorney is not a transferable office
Under Ontario’s Substitute Decisions Act, 1992, a Power of Attorney is a personal appointment. The grantor (A) chooses a specific individual (B) based on trust and confidence.
That means:
- B does not “own” A’s authority
- B does not have the power to re-appoint someone else in A’s place
- The authority given is fiduciary and personal in nature
This reflects the long-standing legal principle that a delegate cannot delegate authority unless expressly permitted.
2. Why B cannot issue a new POA for C
Even if B is acting fully within authority for A, B cannot:
- Sign a new Power of Attorney naming C as attorney for A
- Transfer decision-making authority over A’s assets to C
- Create a parallel legal appointment structure
If B attempted to do so, the document would not be a valid Power of Attorney from A, because only A (while capable) can grant that authority.
3. What B can do instead
While delegation of legal authority is restricted, Ontario law does allow practical flexibility in how attorneys manage affairs.
B may:
- Retain professionals (lawyers, accountants, property managers)
- Instruct agents to perform administrative tasks
- Authorize third parties to carry out instructions
However, in all cases, B remains legally responsible for all actions taken on A’s behalf. So, C may assist B operationally, but C is acting as B’s agent not as A’s attorney.
4. The Exception: express authority in the Power of Attorney
A properly drafted Power of Attorney can include a clause allowing limited delegation.
If A includes wording such as:
- “my attorney may appoint a substitute attorney during absence”
- “my attorney may delegate authority temporarily to another person”
then B may have the ability to appoint C—but only within strict limits. Without such wording, delegation is not permitted.
5. Draft Clause: Temporary Substitute Attorney
To address real-world situations such as travel or short-term unavailability, a Power of Attorney for Property may include a carefully controlled delegation provision such as the following:
“Appointment of Temporary Substitute Attorney
My Attorney for Property may, in writing, appoint one or more persons to act as a temporary substitute attorney during any period in which my Attorney is absent from Ontario, unavailable, or unable to act for a continuous period exceeding seven (7) days.”
Any such appointment must:
a) be in writing and signed by my Attorney;
b) clearly identify the scope and duration of the substitute’s authority;
c) be limited to acts that my Attorney is authorized to perform under this Power of Attorney; and
d) not extend beyond the period of my Attorney’s incapacity, absence, or unavailability.
“My Attorney remains fully responsible for all acts and omissions of any temporary substitute appointed under this clause.
Restrictions on Delegation
For greater certainty:
i) no substitute attorney shall have authority to appoint another substitute;
ii) no delegation shall be used to permanently transfer my Attorney’s authority; and
iii) any delegation shall terminate immediately upon my Attorney becoming available to resume acting.
Notice Requirement (Optional)
Where reasonably practicable, my Attorney shall provide written notice of any appointment of a temporary substitute attorney to me or to any monitor appointed under this Power of Attorney, including the identity of the substitute and the reason for the delegation.”
6. Why this clause matters in practice
This type of clause is particularly useful in:
- real estate transactions with tight closing timelines
- banking or investment management during travel
- estate administration where continuity is essential
- situations involving international or extended absence
It preserves operational flexibility while ensuring that:
- authority remains traceable
- fiduciary responsibility stays with the named attorney
- the integrity of the original Power of Attorney is maintained
Conclusion
In Ontario, an attorney under a Power of Attorney cannot normally appoint a substitute attorney for the grantor. However, with properly drafted language, a Grantor of a Power of Attorney can anticipate temporary absences and permit tightly controlled delegation.
The key is not improvisation after the fact, but careful drafting at the outset.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com