Canada: Wills, Powers Of Attorney For Property And Powers Of Attorney For Personal Care

Last Updated: November 9 2017
Article by Mary Wahbi and Kathryn Balter

Most people are hesitant when it comes to dealing with their Wills and Powers of Attorney. Death and Disability are not easy subjects to deal with. Unfortunately, these are realities that are better dealt with than not.


Everyone who owns assets and wishes to make the decision of who will handle the assets on their death and who will receive those assets should have a Will. A properly prepared Will allows you to:

  1. Choose your estate trustees (executors) who will handle your estate, rather than have a court appoint a person;
  2. Choose the initial guardians of your minor children;
  3. Ensure that your assets will be distributed to the people you choose and in the way you choose, rather than the distribution provided in provincial legislation;
  4. Choose when a beneficiary is to receive his or her inheritance, whether immediately after death, at a specific age or in stages over a period of time;
  5. Make special gifts of specific items to specific people;
  6. Ensure that your obligations to your spouse and dependants are adequately provided for to avoid unnecessary estate litigation which may be very costly and cause delay in the administration of your estate;
  7. Deal with your assets and estate in a way that maximizes tax savings and minimizes Estate Administration Tax (probate fees).

If your Will is more than three to five years old, it may need to be reviewed and updated to account for changes in family circumstances, changes in your desires and changes in the law.

In order to ensure the effectiveness and timeliness of your Will, it should be reviewed by an experienced solicitor at regular intervals and whenever the need arises.

Without a Will, your hard-earned money may go to individuals who you do not wish to benefit or be significantly reduced by the cost of taxes, probate fees and/or litigation.


Estate Administration Tax (commonly referred to as "probate fees") in Ontario are charged at $5.00 per $1,000.00 for the first $50,000.00 of estate assets and $15.00 per $1,000.00 of estate assets greater than $50,000.00. A typical estate worth $500,000.00 will incur probate fees of $7,000.00.

The combined effect of probate fees and capital gains tax on death may result in a serious reduction of assets intended to go to beneficiaries.

A number of estate planning techniques are available either to entirely eliminate or substantially reduce probate fees and capital gains tax.


A Power of Attorney for Property authorizes the person(s) appointed to act on behalf of the person signing the Power of Attorney for Property in conducting his or her financial affairs. The authority given may be general, relating to all financial affairs, or may be limited to one or more specific investments or transactions. The authority may be indefinite in duration, or limited, for example, to during an extended vacation. The authority given is usually intended to survive incapacity and in some cases, is conditional on incapacity.

Ideally, everyone over the age of 18 years should have an attorney to act in the event of loss of mental capacity or disability. The costs of having a proper Power of Attorney for Property prepared are small compared to the costs of a court application.

If such a tragedy occurs and a Power of Attorney for Property is not in place, in order to handle the disabled person's financial affairs, the spouse or other family member would have to be appointed by court order as the disabled person's guardian. As well, under certain circumstances, The Public Guardian and Trustee may become the disabled person's statutory guardian. Neither alternative is desirable as both would involve time, significant expense and aggravation at a time when it is least likely to be manageable.


A Power of Attorney for Personal Care authorizes the person(s) appointed to act on behalf of the person signing the Power of Attorney for Personal Care in making personal care decisions if the person giving it becomes incapable of making such decisions. Personal Care decisions are those relating to health care, nutrition, shelter, clothing, hygiene and safety.

Unlike a Power of Attorney for Property, a Power of Attorney for Personal Care can only be relied on by a third party if the person giving it is incapable of making the decision in question.

The Power of Attorney for Personal Care can provide two things. First, it allows you to choose one or more persons to make personal care decisions on your behalf if you are unable to. Second, it can contain instructions as to the decisions you want made, including authorizing or prohibiting certain types of treatment under specified circumstances. This is of great assistance to family members who are coping with the emotional impact of the illness and family disruption and are faced with making a serious medical decision.

If a person loses their capacity and does not have a Power of Attorney for Personal Care, the Provincial legislation provides a hierarchy of family members who are entitled to make the necessary decisions and the Public Guardian and Trustee as the last resort, but this legislation only permits decision making in the context of consent to treatment or placement in long-term care. The person entitled to make decisions under this legislation may have no idea what your wishes are with respect to your personal care decisions or they may not be a person that you wish to make such decisions on your behalf.


A properly prepared Will, Power of Attorney for Property and Power of Attorney for Personal Care will allow you to make your wishes known, will ensure that your wishes are followed while you are alive and after your death, and may save your family emotional hardship, time and money.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions