Why You Need a Power of Attorney Alongside Your Will

Most people think estate planning begins and ends with writing a will. And while a will is essential, it only takes effect after you die. What about while you’re still alive, but unable to make decisions for yourself?

That’s where a power of attorney comes in.

What Is a Power of Attorney?

A power of attorney is a legal document that gives someone you trust, called your attorney, the authority to make decisions on your behalf. Despite the name, your attorney doesn’t have to be a lawyer. It can be a spouse, adult child, sibling, or close friend.

In Ontario, there are two main types:

Continuing Power of Attorney for Property

This document authorizes your attorney to manage your financial affairs: Paying bills, managing investments, selling property, filing taxes. The word continuing is important, it means the document remains valid even if you become mentally incapacitated. Without that provision, a standard power of attorney would automatically expire the moment you lose capacity; precisely when you need it the most.

Power of Attorney for Personal Care

This document covers your health and personal decisions: Medical treatments, living arrangements, diet, and hygiene. Your attorney for personal care steps in when you are no longer able to communicate your own wishes, whether due to illness, injury, or cognitive decline.

This includes some of the most difficult decisions a person can face. If you are in a coma, on life support, or in a persistent vegetative state, your attorney for personal care has the authority to make treatment decisions on your behalf, including whether to continue or withdraw life-sustaining treatment. Without this document, those decisions may fall to doctors and hospital ethics boards rather than the people who know and love you.

Having a power of attorney for personal care means your values and wishes guide those decisions, not a stranger’s judgment.

Why a Will Alone Isn’t Enough

Here’s a scenario that plays out more often than people realize: a 58-year-old suffers a stroke. They’re alive, but unable to communicate or manage their affairs. Their family wants to help (e.g., pay the mortgage, access savings, make medical decisions), but without a power of attorney they can’t.

A will gives no authority here. It doesn’t activate until death.

Without a power of attorney in place, the family may need to apply to the Ontario courts to have a guardian appointed. It’s a lengthy, expensive, and emotionally draining process (entirely avoidable with the right documents in place).

Who Should Have a Power of Attorney?

The short answer: Anyone over 18.

Incapacity isn’t something that only happens to the elderly. Accidents, sudden illness, and mental health crises can affect anyone at any age. If you have assets, a mortgage, or anyone who depends on you, a power of attorney is not optional — it’s essential.

Choosing the Right Attorney

Your attorney will have significant power over your life and finances, so choose carefully. Look for someone who:

• Is trustworthy and organized
• Understands your values and wishes
• Is available and willing to take on the responsibility
• Is unlikely to predecease you or become incapacitated themselves

You can also appoint joint attorneys who must act together, or alternate attorneys who step in if your first choice is unavailable.

What Happens If You Don’t Have One?

If you lose capacity without a power of attorney in Ontario:

• Your property may be managed by Ontario’s Public Guardian and Trustee until a court-appointed guardian takes over,
• Your family has no automatic legal authority over your finances or healthcare, and
• Decision-making may be delayed at the worst possible time.

Making It Official

In Ontario, a Continuing Power of Attorney for Property must be signed in front of two witnesses, neither of whom can be your attorney, their spouse, or your own spouse or partner. A Power of Attorney for Personal Care has similar requirements.

It’s strongly recommended to have both documents drafted by a lawyer to ensure they meet Ontario’s legal requirements and accurately reflect your intentions.