Freedom of choice
The basic rule in Ontario is that a competent individual (see above) can grant a PoA to whomever they want, and the Courts will rarely over-rule this choice.
The attorney must be a competent adult – someone over the age of 18, who is competent to grant their own power of attorney (see above).
Undue Influence
The decision to grant a power of attorney must have been made by the grantor free from any undue influence by the attorney or any third party. Undue influence can occur when, for instance, the attorney uses fear, intimidation, or control over the attorney’s movements or finances to coerce the attorney into granting a power of attorney to them. The facts are crucial. Thus, while a very helpful potential attorney might legitimately assist a grantor to find a lawyer, make an appointment and then drive the grantor to the appointment, a similar situation could be an indicator of undue influence of the grantor by a coercive attorney.
Continuing powers
There are very few formal requirements for powers of attorney. There are no magic phrases that they must contain. However, in order of a PoA to be a continuing PoA it must clearly state that it is continuing. This is crucial.
Proper signing
A power of attorney must be in writing and must be signed properly to be effective. It must be signed in the presence of two witnesses, and each witness must sign the PoA. The witnesses must be over 18 and must not be any of
• The attorney or the attorney’s spouse or partner,
• The grantor’s spouse or partner,
• A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child, or
• A person whose property is under guardianship or who has a guardian of the person.