“Powers of Attorney” and “wills” are legal documents that you prepare to set out your wishes about your care, your belongings and property, and your loved ones.
Your Powers of Attorney are about your wishes and decision-making when you are alive. Your will is about what you want to happen after you die. Powers of Attorney end when you die. Your will only takes effect when after you die.
This section has information about Powers of Attorney and wills. It also has information about who will take care of your children. This is general information so it is important to get legal advice.
If you are living with HIV in Ontario, please contact us for free legal advice about this or other legal issues. People living in Ontario can contact their local community legal clinic for information about services in their communities. Most community legal clinics do not deal with Powers of Attorney and wills but may give you information and referrals.
Powers of Attorney
A Power of Attorney is a legal document in which you appoint someone to make decisions for you. Usually, you appoint someone under a Power of Attorney because you want them to make decisions for you in case you are unable to make your own decisions because you are not mentally capable. The legal definition of what it means to be mentally capable is complicated. The definition of mental capacity is different depending on the decision, the purpose and the circumstances.
You have to be “mentally capable” in order to make a Power of Attorney. You never know when you might not have the mental capacity to prepare Powers of Attorney, so it is a good idea to make your Powers of Attorney if you are capable now.
It is important to understand that a Power of Attorney ends when you die. That is why you need a will as well as a Power of Attorney.
A will expresses your wishes for after you die and has no legal effect before you die. A Power of Attorney only has effect before you die. People often make a will and Powers of Attorney at the same time.
The person you appoint in a Power of Attorney does not have to be a lawyer. Under the law, the person you appoint is referred to as the “attorney” but is more commonly known as a “Substitute Decision-Maker” (SDM). The person or people you appoint must be mentally capable.
You can appoint more than one person in your Power of Attorney, and you can say if they can make decisions separately or if you want them to make decisions together. You should appoint someone you trust to make decisions in your best interest and according to your wishes, for example a close family member or friend. It is a good idea to talk to your Substitute Decision-Maker to make sure that they are willing to take on the responsibility. You should also talk to your Substitute Decision-Maker about the kinds of decisions you would want them to make for you.
This is general information so it is important to get legal advice (see Getting legal help below).
Types of Power of Attorney
Power of Attorney for Personal Care:
In your Power of Attorney for Personal Care, you appoint someone to make personal care decisions for you, including decisions about your:
- health care and medical treatment
- diet, housing, and clothing
- hygiene, and
Your Power of Attorney for Personal Care only takes effect when you are not capable of making a particular decision. You might be capable of making some decisions but not others. Your capacity to make decisions for yourself can change over time.
The person (or people) that you appoint must be at least 16 years of age and mentally capable. You should talk to the person you appoint as your Substitute Decision-Maker to let them know what decisions you might want them to make for you.
You should talk with your Substitute Decision-Maker about how you wish to be cared for in the future if you become incapable. Communicating with your Substitute Decision-Maker about what personal care decisions you do or do not want to receive in the future is known as Advance Care Planning.
What is the difference between Advance Care Planning and a Power of Attorney for Personal Care?
Advance care planning is about making choices now, while you are mentally capable, about how you wish to be cared for in the future if you become incapable. Your wishes about future care should be shared with your Substitute Decision-Maker, who is appointed when you prepare a Power of Attorney for Personal Care.
It is important to communicate with your Substitute Decision-Maker about your values and beliefs, to help make sure that they can make the decisions you would want. The wishes that you express while you are capable are legally binding. This means that your Substitute Decision-Maker must consider your wishes when making decisions on your behalf.
You may change your wishes about personal care, so it is important to review your wishes on a regular basis with your Substitute Decision-Maker. Your wishes do not have to be in writing. You may communicate your wishes any way you like, including orally, in writing or with a recording device. Written or recorded care wishes may actually limit the decisions that your Substitute Decision-Maker can make. Limiting your Substitute Decision-Maker can be a problem because you cannot plan for every situation and your wishes may change over time. You may therefore choose not to write or record your wishes so your Substitute Decision-Maker is not limited. You should talk with your Substitute Decision-Maker as well as a lawyer about whether it is helpful to put your care wishes in writing.
People often talk about a “Living Will” or an “Advance Care Directive”. A living will or advance care directive is used to document your care wishes for your Substitute Decision-Maker. A living will or advance care directive does not provide legal authority for someone to act as your Substitute Decision-Maker, unless the document also meets the legal requirements as a Power of Attorney for Personal Care or is attached to a Power of Attorney for Personal Care (see Power of Attorney for Personal Care above).
This is general information so it is important to get legal advice.
Continuing Power of Attorney for Property:
In your Continuing Power of Attorney for Property, you appoint someone to make financial decisions for you. The person must be at least 18 years of age and mentally capable. The person that you appoint can do anything with your property that you could do, except the person cannot make a will for you or make a new Power of Attorney for you. Only you can make a Will or Power of Attorney for yourself. Decisions that the person might make in your name include:
- signing cheques
- buying or selling real estate
- buying or selling personal property, and
- taking out loans.
It is very important that you be sure that you can trust the person that you appoint in a Power of Attorney for Property as that person will have a lot of power.
The person you appoint to make decisions for you under a Continuing Power of Attorney for Property can take a fee for doing this. If you do not want the person to take a fee, you must put a condition in the Power of Attorney document.
When does my Continuing Power of Attorney for Property take effect?
Unless you put a condition or limit in your Continuing Power of Attorney for Property, it will take effect as soon as you sign it. This means that the person that you appoint can start acting on your behalf right away. If you only want your Continuing Power of Attorney for Property to take effect if you are not capable of making your own decisions, then you must put that condition or limit in your Continuing Power of Attorney for Property.
What about my child?
Your Continuing Power of Attorney for Property cannot authorize someone to care for your child because a child is not “property”. Your Continuing Power of Attorney for Property can include financial arrangements for your child, for example, you could authorize using your income or assets for your child. See our What about my child? section below for information about your child(ren).
What about my pets?
Since pets are considered to be “property”, you can include instructions about your pet in your Continuing Power of Attorney for Property.
What else do I need to know about Powers of Attorney?
Can I change or cancel my Powers of Attorney?
If you have the mental capacity to make a Power of Attorney, you can change or revoke (cancel) your Power of Attorney. If you change or revoke your Power of Attorney, you should inform your attorney. You should also inform any person, organization or institution that knows about your Power of Attorney.
When do my Powers of Attorney end?
As noted above, if you have the mental capacity to prepare a Power of Attorney, you can change or revoke (cancel) a Power of Attorney. A Power of Attorney will usually end if you make a new Power of Attorney, because the new Power of Attorney replaces the existing Power of Attorney. A Power of Attorney can end if a Court makes a decision to appoint another Substitute Decision-Maker. Powers of Attorney end when you die.
What if I have not prepared Powers of Attorney?
If you are no longer able to make decisions for yourself, but you have not prepared Powers of Attorney, then the law sets out who will make decisions for you.
What if I do not have a Power of Attorney for Personal Care?
If you become mentally incapable to make personal care decisions for yourself, but you have not prepared a Power of Attorney for Personal Care, then the law sets out who your Substitute Decision-Maker (SDM) for personal care decisions will be, in this order:
- your “representative” or “guardian” who has been appointed by the court or the Consent and Capacity Board,
- your spouse or partner,
- your parent(s) or your child(ren) who are at least 16 years old,
- your brother(s) or sister(s),
- any other relative, or
- the Government of Ontario Office of the Public Guardian and Trustee.
The person that the law would consider to be your Substitute Decision-Maker may not be the person that you would want to make decisions for you, so it is recommended that you appoint a Power of Attorney for Personal Care (see Power of Attorney for Personal Care section above).
What if I do not have a Continuing Power of Attorney for Property?
If you have not prepared a Continuing Power of Attorney for Property, and others believe that you are not mentally capable to make your financial decisions, someone would have to take action to get control to make financial decisions for you. They could
- apply to the court to become your Guardian of property
- arrange for you to have a capacity assessment by a special capacity assessor. If you are found incapable, then the Public Guardian and Trustee (PGT) would manage your finances. Your family could apply to replace the Public Guardian and Trustee and take over management of your money.
There are other steps that your family and friends could take to take over management of your finances, but each way takes some time. Having a Continuing Power of Attorney for Property makes it easier for your Substitute Decision-Maker to manage your property for you when you are not able to do so yourself .
How do I Prepare Powers of Attorney?
It is strongly recommended that you prepare both types of Powers of Attorney so that you can choose who will make decisions for you. You should get legal advice before preparing Powers of Attorney. People often make Powers of Attorney at the same time that they make a will. If a lawyer is making your will, you can ask about making Powers of Attorney too. For more information about wills, see the Wills section.
This is general information so it is important to get legal advice.
Community Legal Education Ontario (CLEO) has booklets about Powers of Attorney for Personal Care and Continuing Powers of Attorney for Property available on the CLEO website or in print: www.cleo.on.ca/english/pub/onpub/subject/health.htm
The Ontario Government website includes information about advance care planning: www.ontario.ca/page/seniors-plan-for-the-future.
Here is a link to information about Powers of Attorney on the Ontario Government website: www.attorneygeneral.jus.gov.on.ca/english/justice-ont/estate_ planning.asp#wills
You should get legal advice before making Powers of Attorney. You can get Power of Attorney forms from the Ontario Ministry of the Attorney General website: www.attorneygeneral.jus.gov.on.ca/english/family/pgt/incapacity/poa.php
A “will” is a legal document that you prepare to set out your wishes in case of your death. A will is often called a “Last Will and Testament”. Your wishes in your will may relate to how you are laid to rest (funeral, burial, cremation), who looks after your children, how your loved ones and pets are provided for, and who looks after your estate. Your will is about what you want to happen after you die. Powers of Attorney end when you die (see information about Powers of Attorney above).
This is general information so it is important to get legal advice.
Do I need a will?
It is important to have a “will”. Even if you do not have children or a lot of savings or property, your will has more than one purpose. Your will sets out your wishes, including:
- appointing your “Executor(s)” (the person/people who will carry out your wishes) and any alternate Executor(s) if the original Executor cannot or will not act
- how you are laid to rest (funeral, burial, cremation)
- who you name to look after your children (see Who will look after my child? section)
- arrangements or gifts for your children (for example, that your children receive half of their inheritance at one age and the other half at another age)
- arrangements for your pets, and
- what happens to your “estate” (money, belongings, other personal assets, property, real estate, etc.).
Generally, a “probate” application must be made to the court in order for your “estate” to be distributed according to your will. If your estate is not very large, then it may be possible to distribute your assets according to your will but without having to apply to court. For example, if you have money in a bank account that is not jointly held, the bank will likely allow your Executor to deal with the money without having to probate your will.
You can only make a will when you are “mentally capable” under the law. Your will may be challenged if you make your will when you are not mentally capable. The legal definition of what it means to be mentally capable is complicated.
You never know what the future may bring, so it is a good idea to prepare your will now. Your will is a very important document and the law is complicated, so you should get legal advice about your will.
What if I die but I do not have a will?
If you die but you do not have a “will“, you are said to have died “intestate”. If you have not made a will, the law generally requires that someone apply to the court to be appointed to distribute your estate. The person will need to hire a lawyer to make the court application. If you die without a will, the Succession Law Reform Act sets out how your property will be divided. This may not be the way you would have chosen to divide your property.
Even if there is no will, some property and/or assets may be distributed without a court application. Examples include money that is in a joint bank account and property that is jointly owned. If you are dealing with the estate of someone who died without a will, you should get legal advice about how the estate can be administered and whether it is necessary to apply to court.
It is strongly recommended that you get legal advice and that you make a will.
What if my partner and I are not legally married?
If you do not have a will and you are not legally married to your spouse or partner, your spouse or partner may have no rights to your estate. If you and your spouse/partner have joint assets, then your spouse/partner may have rights but only to those joint assets. If you want to provide for your common-law spouse or partner, you must set it out in your will.
How do I prepare a will?
You should have your will prepared by a lawyer. It may not cost a lot of money and may even be free (see Getting Legal Help below). A lawyer will know the law and may also make suggestions or raise issues that have not occurred to you. A will drawn up by a lawyer is much more likely to stand up to any legal challenge. The lawyer will usually keep a copy of your will in their safe or you may choose to have the lawyer keep your original will for you.
Can I make my will myself?
In an emergency, you can hand-write your will yourself. This is called a “holographic will”. A holographic will must be entirely in your own handwriting and must include your signature. Although a holographic will does not have to be witnessed to be legally valid, you may want to have witnesses in case someone challenges your will after you die (see paragraph below for more information about witnesses). If you prepare a holographic will make sure that it states:
- your full name
- that it is your “last will and testament”
- the date you are making your will
- who you appoint as Executor(s) to administer your estate, and
- what your wishes are.
If your will is typed, even partly, it is not a holographic will. If your will is typed or if you use a will form or kit, you must have two witnesses. You and the witnesses must be together when you sign your will. You and your witnesses must each sign the last page and you must also each initial every page of your will. You should number the pages of your will, for example: “page 1 of 3, page 2 of 3”, etc. One of the witnesses will have to swear a witness affidavit as well. Your witnesses cannot be “beneficiaries”, which means that your witnesses cannot be people who could benefit from your will.
It is strongly recommended that you get legal advice before you prepare your will, including advice about who should be a witness to your will (How do I make a will? above).
Do I need to talk to the person that I am naming as my Executor?
You should talk to the person or people that you want to name as your Executor(s) in your will to make sure that they are willing to take on the responsibility. Your Executor(s) has important responsibilities and it can be time-consuming to carry out the many duties of an Executor.
What about copies of my will?
You do not have to give a copy of your will to anyone. However, your Executor should either have a copy of your will or know where your will is kept. You should only have one signed original will. If you make copies of your will, you should get the copies certified by a lawyer or notary public. You can decide to give a copy of your will to anyone else if you wish.
I have a will already. Do I need to prepare a new will?
Remember to review your will regularly because your wishes or your situation may change. There can be many reasons to prepare a new will. For example, it is important to prepare a new will:
- when your wishes change
- if you get married or have children after you make your will
- if you get separated or divorced, or
- if your Executor is no longer willing or available.
It is important to get legal advice about making your will (see Getting legal help below for information about getting legal advice).
Here are links to information on Ontario Government websites:
- Wills, Estates and Trusts: www.attorneygeneral.jus.gov.on.ca/english/justice-ont/estate_planning.asp#wills
- What to do when someone dies in Ontario: www.ontario.ca/page/what-do-when-someone-dies
Here is a link to information from the Government of Canada:
- What to Do Following a Death: www.canada.ca/en/employment-social-development/services/benefits/family/death.html
Who will take care of my child?
If you become very ill, you may not be able to care for your minor child or children. A “minor child” is a child who is under the age of 18 years.
Usually, the law gives “custody” of a minor child to the biological/birth or adoptive parents. Custody is the right to make the important decisions about the care and upbringing of a child. Custody does not only mean having the day-to-day care of a child. Custody also involves making major decisions about the child’s residence, education, health, choice of religion and general welfare.
If you are separated from your child’s other parent, you may agree that the other parent can take over your role as your child’s primary caregiver. If you are too ill to physically care for your child, you can still share custody of your child if you are able to make decisions about your child.
If you and your child’s other parent cannot agree, then either you or the other parent can apply to the court for custody. The court usually gives custody to a parent. However, anyone can apply to the court for custody of a child, for example a grandparent or close friend. If you do not believe that your child’s other parent should have custody of your child, you and/or others could oppose the other parent’s custody application. You could support the custody application of another family member or close friend. The court has to decide what custody arrangement would be in the best interests of your child.
The Ontario Office of the Children’s Lawyer may represent children under the age of 18 with respect to their personal and property rights, including child custody and access disputes, child protection proceedings, estate matters and civil litigation.
For more information about children’s rights:
- The Ontario Office of the Children’s Lawyer: www.attorneygeneral.jus.gov.on.ca/english/family/ocl/
- Justice for Children and Youth is a community legal clinic that specializes in legal issues for children and youth: www.jfcy.org
If you have a family member in another country who might help you and/or your child while you are ill, it may be possible to ask your family member to come to Canada. If you want to try to bring someone to Canada, you should get legal advice as soon as possible (see Getting legal help below).
If someone else is caring for your child under the age of 18, that person may be eligible for Ontario Works Temporary Care Assistance benefits for your child. They may also apply to receive any Child Benefits for your child. Usually only one person can receive benefits for a child. So if someone else is receiving benefits for your child, you will not receive your child’s benefits. Please visit the Child Benefits section in our Other Government Benefits section for more information.
Does my Continuing Power of Attorney for Property include my child?
Your Continuing Power of Attorney for Property cannot authorize someone to care for your child because a child is not “property”. Your Continuing Power of Attorney for Property can include financial arrangements for your child, for example, you could authorize using your income or assets for your child.
Does my “will” include my child?
If you have a “minor” child or children (under the age of 18 years), it is strongly recommended that you have a “will”. In your will, you can appoint a person to have custody of your child and to have guardianship of the child’s property when you die. The person you appoint has 90 days from the date of your death to bring an application to court for custody and guardianship of the child’s property. The other parent, another family member or someone else may oppose the application. The court will make a decision based on the best interests of the child. See our Wills section above for more information.
What if there is no one to take care of my child?
Ontario’s Children’s Aid Societies (CAS) have a legal duty to make sure that children under the age of 16 are protected. If you become very ill or die and there is no appropriate adult who is willing to care for your child under the age of 16 years, then CAS will become involved. CAS will take your child into care, which may be temporary or in some cases permanent. The Ontario Association of Children’s Aid Societies website has more information about CAS: www.oacas.org/
You can talk to a lawyer about making plans for your child(ren).
Getting legal help
If you are living with HIV in Ontario, please contact us for free legal advice about this or other legal issues. If you live in Ontario you can contact your local community legal clinic for information about services in your community. Most community legal clinics do not deal with Powers of Attorney and wills but may give you information and referrals.
The Law Society Referral Service (LSRS) of the Law Society of Ontario is an on-line service that provides a referral to a lawyer or paralegal for an in-person or phone consultation of up to 30 minutes at no charge: www.lsuc.on.ca/lsrs. The LSRS crisis telephone for people in custody, in crisis, in a shelter or in a remote community without internet access is 416-947-5255 or toll-free 1-855-947-5255, Monday to Friday 9 am to 5 pm. The Law Society of Ontario was formerly the Law Society of Upper Canada.