The following is an explanation offered on the subject by the Ministry of the Attorney General:
“SECTION 2: CONTINUING POWER OF ATTORNEY FOR PROPERTY
Do I have to use a specific form to make my Continuing Power of Attorney for Property (“CPOA”)?
No. A special form is not required. But to be valid, a CPOA must:
• Be called a Continuing Power of Attorney for Property or say that it allows your attorney to continue acting for you if you become mentally incapable;
• Name one or more persons to act as your attorney for property;
• Be signed by you and dated; and
• Be signed by two witnesses who saw you sign the document.
I made my CPOA before 1995 and it only has one witness. Does this make it invalid?
No. Although the law was changed in 1995 to require two witnesses, the new law accepts CPOAs that were signed before 1995 and made under the “old” law with only one witness.
Can anyone be a witness to my CPOA?
No. There are some restrictions. The following people cannot act as witnesses:
• your spouse, partner, child, or someone you treat as a child;
• your attorney or your attorney’s spouse or partner;
• anyone under the age of 18;
• anyone who has a “Guardian of Property” (for example, someone appointed by a court because they are mentally incapable of managing their property); or
• anyone who has a “Guardian of Person” (someone appointed by a court to make personal care decisions for them because they are not mentally capable of making their own decisions).
Note: A person is your “spouse” if:
• you are married to them; or if unmarried, you are living in a conjugal relationship and o you have a cohabitation agreement;
o you have lived together for at least a year; or
o you have had a child together.
A person is your “partner” if you have lived with them for at least a year and you have a close personal relationship of primary importance to both of you.
Who is allowed to make a CPOA?
Anyone who is 18 years of age or older and who has the necessary level of mental capacity can make a CPOA.
What level of mental capacity is needed to make a CPOA?
Mental capacity, in this situation, means that you:
• know what property you have and its approximate value;
• are aware of your obligations to the people who depend on you financially;
• know what you are giving your attorney the authority to do;
• know that your attorney is required to account for the decisions they make about your property;
• know that, as long as you are mentally capable, you can revoke (cancel) this Power of Attorney;
• understand that if your attorney does not manage your property well its value may decrease; and
• understand that there is always a chance that your attorney could misuse their authority
Who can I appoint as my attorney for property?
The law allows you to appoint anyone you choose as long as the person is at least 18 years of age. You can name someone who lives outside the province. You can also name more than one person.
Should I appoint the same person that I appoint as my Estate Trustee (Executor) in my Will?
Your CPOA is only effective during your lifetime and has nothing to do with your Will. There is no law preventing you from naming the same person.
What should I think about in choosing an attorney for property?
This is a very important decision and needs a lot of careful thought. Remember, your attorney will have full access to your money and other property.
Consider whether the person is willing to take on this job, if needed. There is a lot of work involved and the law expects your attorney to meet very high standards. Consider whether the person is trustworthy, responsible and good at handling finances. Will the person make sure you have all the things you need? Will your privacy be respected? Can you trust the person not to misuse your money? These are some of the things you should consider before you decide.
I want to name a specific family member but I’m worried that this will cause conflict. Is there anything I can do to prevent this?
There are a number of options that may help, depending on your situation and personal preferences.
Conflict may often be avoided by telling your family in advance and explaining the reasons for your choice.
Sometimes conflict is created because the rest of the family doesn’t know what your attorney is doing with your money. To avoid this, some people name more than one family member and require that all decisions and transactions be approved by both of them. This can reduce distrust but it can also create conflict if
they disagree about decisions. Other people simply choose to specify in their CPOA that all the family must be kept informed about decisions and provided with full information.
Another way to avoid family conflict is to name someone else, such as a close friend, a trust company or lawyer.
Is there anything I can do in advance to reduce the likelihood that my CPOA will be challenged?
If you anticipate that someone may challenge your CPOA by saying, for example, that you aren’t mentally capable, it would be advisable to consult with a lawyer. You may also want to ask your doctor for a medical report confirming your capacity.
If I appoint more than one attorney will they have to do everything together?
Yes, unless you say in the CPOA that they can act “jointly and severally”. If you include this phrase, either of your attorneys will be able to make decisions alone on your behalf. If one is away or sick, for example, the other would still be able to sign cheques and give instructions on your behalf.
What should I do with my CPOA after I have completed it?
It depends on your situation. Many people choose to put it in a safe place that their attorney knows about and can access quickly if needed. Others choose to leave it with a trusted third party such as their lawyer, with specific instructions about when to release it.
If you do this, however, it is important to remember that it may be many years, if ever, before your CPOA is needed and the person you have left it with may have moved away or may have died in the meantime.
It is strongly recommended that you go to your bank and make sure they put a copy of your CPOA on file and confirm the arrangement. You should also send a copy to any other financial institutions that you deal with.
You should review your CPOA every few years, just as you would your Will as circumstances can change.
Can my bank refuse to recognize my CPOA?
As long as your CPOA appears to be properly completed and witnessed, and the bank has no reason to suspect that it is invalid, it should be recognized. But it is wise to give your bank a copy of your CPOA so that they will have it on file. This will allow the bank to advise you of any issues they may have with your CPOA, which you may choose to address while still capable of changing your CPOA.
What if my bank insists that I make my Power of Attorney on its own form?
You should think carefully before you sign these forms. The bank’s form will likely only cover your bank accounts and investments with that institution and not any of your other assets. Signing it could also cause the Power of Attorney you have already signed to be revoked, leaving you with no one able to handle your other affairs (non-bank assets) if needed.
If the bank refuses your Power of Attorney you may wish to raise this issue with supervisors at the bank’s head office, the bank Ombudsman, or consult a lawyer.
When will my CPOA take effect?
Your attorney will be able to use the CPOA as soon as it is signed and witnessed, unless you say otherwise in the document. You might, for example, want to say that the CPOA can only come into effect once you have been determined to be incapable of managing your property. If you do this, it is wise to say how your incapacity will be determined. A letter from your doctor might be sufficient, for example. But think carefully before you set these types of conditions as they may result in complications and delays if the need to use the document arises. You
may instead wish to simply have an unwritten agreement with your attorney that they will use it only if you can’t look after these matters yourself and trust that your attorney will make the right decision at the time.
What does “incapable of managing property” mean?
It means that a person can’t understand information about their property or finances, or is unable to appreciate what could happen as a result of making a certain decision (or not making a decision) about these issues.
What powers will my attorney have?
Unless you restrict your attorney’s powers, they will be able to do almost anything that you can do concerning your finances. Your attorney can sign documents, start or defend a lawsuit, sell property, make investments and purchase things for you. Your attorney cannot, however, make a Will or give a new CPOA on your behalf.
Think carefully before restricting your attorney’s powers. If you become incapacitated, and there are some assets that your attorney can’t look after, you may need to have a guardian appointed. If no one comes forward to apply to be your guardian, the OPGT may be required to act for you.
Is my attorney entitled to be paid?
Yes. Your attorney is entitled to take payment from your funds at a rate specified by law unless you say otherwise in your CPOA.
If you want to set the amount yourself, or you don’t want your attorney to be paid at all, write this in the document.
If your CPOA is silent on the matter of payment your attorney will be entitled to:
• 3% of money received;
• 3% of money paid out on your behalf; and
• 3/5 of 1% of the average annual value of your assets.
The Court has the authority to adjust the attorney’s compensation upon request or its own initiative on an application to pass accounts. A passing is when the attorney or guardian asks the judge to approve their financial management for a specified time oeriod.
Is my attorney required to keep my financial information confidential?
Yes, your privacy must be respected unless:
• you specifically authorize your attorney to disclose information by writing this in your CPOA; or
• your attorney needs to disclose information to carry out their duties or to abide by the law.
Is my attorney required to report to me?
It’s up to you. Your attorney is required to provide you with a full accounting whenever you ask for one.
What if I, or someone else, discover that my attorney is mismanaging or stealing my money?
If capable, you may elect to revoke (cancel) your Power of Attorney, demand a full accounting and consider making a claim for any lost funds. If the matter involves theft, a report to the police should be considered.
If someone else has evidence suggesting mismanagement or theft, and believes that you are mentally incapable, they may wish to ask the court to review the accounts and records your attorney is required to keep. This process is called a “passing of accounts”. They may also wish to report the matter to the police or the OPGT. The OPGT investigates allegations involving a mentally incapable person who is believed to be at serious financial risk.
If I change my mind, how can I cancel my CPOA?
To cancel your CPOA you must state in writing that you are “revoking” it. There is no special form for this statement, which is referred to as a “revocation”, but it must be signed and witnessed by two people, the same way as your Power of Attorney. Who may be a witness is addressed in question 26.
You are considered capable of revoking your CPOA if you have the capacity to make one. Mental capacity to make a CPOA is addressed in question 28.
What should I do once I’ve cancelled my CPOA?
Give the revocation statement to your attorney. You should also tell everyone who is involved with your income or property – such as your bank and pension sources – about the revocation. Send them a copy. If you own a home or other real estate you may wish to consider having a lawyer register notice of the revocation on title to prevent any unauthorized dealings. It is also a good idea to get the original CPOA back from your attorney and destroy it.
What happens if the person I appoint as my attorney cannot act for me for some reason?
You can avoid this problem by naming one or more people as your “substitute” attorney. The substitute can act if your attorney dies, is unable to assume the role for some other reason, or chooses not to act on your behalf.
Alternatively, if you have not named a substitute you should consider making a new CPOA.
What happens if I don’t make a CPOA and I become unable to manage my own finances?
It depends on the situation.
If you have no assets and get only pension income from the government, a family member or friend may be able to ask the pension source, e.g. Ontario Disability Support Program, Canada Pension Plan, for permission to manage this income on your behalf.
If your finances are more extensive, a family member or friend could apply to be your guardian. For more information about such applications, please see the brochure entitled “Becoming a Guardian of Property”. The OPGT may act as your guardian if there is no one else willing, able and suitable to take on this role. The OPGT’s appointment as guardian may be mandatory in certain situations. In these cases, family members may apply to replace the OPGT as guardian.”
COMMENT
Naturally, there are other questions which arise as well. It is best to retain a lawyer to prepare your Power of Attorney(s)”.
The Above explanation was up to date as of 12 September 2025.
Brian Madigan LL.B., Broker