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No one wants to think about a time when you can no longer make decisions for yourself. The thought is a difficult one; but a worse thought is when you are in that situation and you have no one you trust to make those decisions for you. It is for this reason that a set of Continuing Power of Attorney documents should be drafted when you still have the capability of choosing someone you trust to handle your affairs.

In simple terms, a Power of Attorney is a legal document that gives someone else the right and authority to act on your behalf. The validity, requirements, and use of power of attorney documents in Ontario is governed by the Substitute Decisions Act, S.O. 1992, CHAPTER 30., the Powers of Attorney Act, R.S.O. 1990, CHAPTER P.20, and related common law decisions.

In Ontario, there are three types of Power of Attorney documents:

1) Continuing Power of Attorney for Property –appoints someone to make decisions with regard to your financial affairs and continues to be in effect even if you become mentally incapable.

2) Power of Attorney for Personal Care- appoints someone to make decisions with regard to your personal decisions including health care and continues to be in effect even if you become mentally incapable.

3) Non-Continuing Power of Attorney for Property – limited use document that appoints someone to make financial decisions during a specified period of time and cannot be used if you become mentally incapable. For example, these are often used for individuals who are out of the country for long periods and need someone to handle their affairs while they are gone.

This article will focus primarily on the first two Power of Attorney documents. Unlike a Will, a Power of Attorney comes into effect during your lifetime and is only valid until death. After death, your Power of Attorney no longer has power. It is intended to be used during periods of incapacity- meaning times when you are unable to make decisions on your own behalf. Some common examples include: individuals suffering from dementia or Alzheimer’s disease or those who are in a coma or under long-term sedation, among others.  However, you should always choose someone you trust because, for example, your Power of Attorney for Property comes into effect as soon as you sign it- meaning that individual can access your bank accounts or sell your property without your knowledge, even if you are still mentally capable.   It is for this reason that it is crucial that you trust the person who you have appointed because the position holds a lot of power.

A Power of Attorney is not a mandatory document, but instead one that you give voluntarily to protect you and your assets. You should never force someone, or be forced, to give a Power of Attorney.  Furthermore, you cannot give a Power of Attorney if you are “mentally incapable”. In other words, if you are unable to recognize the gravity of signing the document at the time of signing, it cannot be completed (mental incapacity is much more complicated that this, but for ease of reference we will stick with this). Lawyers are not permitted to witness a Power of Attorney document if they have reason to believe that the individual does not have capacity. It is for this reason that it is important to ensure that these documents are finalized while you are still capable. Many adults with aging parents or spouses face this issue because if they have waited too long, the documents can no longer be validly signed. Many people get to the point when they need a Power of Attorney, but are no longer capable of giving one.

What happens if I don’t have a Power of Attorney?

In the situation where you become incapable of making your own decisions, and you do not have a Power of Attorney for Personal Care, many decisions related to personal care would be made by a family member, if any, who would automatically receive the authority to make these decisions for you. This individual would not receive the same amount of authority they would have received as your Power of Attorney. Some situations require the appointment of an individual by the Consent and Capacity Board. If there is no family member who is willing and able to act on your behalf, the Ontario Public Guardian and Trustee would have to be appointed.

In the situation where you become incapable of making your own decisions and you do not have a Power of Attorney for Property, a friend or family member can apply to the Superior Court of Justice to be appointed as your “Guardian of Property”. This process is detailed and can be quite expensive as it requires payment of court fees, capacity assessments, and legal fees. Alternatively, if the Public Guardian and Trustee of Ontario have been named as the statutory guardian, the Public Guardian and Trustee of Ontario can also name an individual to be the Guardian of Property.

The issue with these two options is that you do not have control over who is managing your decisions. Your decisions could be left in the hands of someone you do not trust or one that does not necessarily have your best interests at heart. There are requirements for these individuals to act reasonably, but if you are incapable, you are not able to request an accounting or make a complaint. Someone else would have to be the individual who questions the decisions of your guardian.

Often people say “it’s too early” or “I’ll get to that eventually”. Life tends to get in the way. Some people may find themselves mentally incapable and facing a lawyer who, by law, cannot witness a Power of Attorney document.  When it comes to these life decisions, it is best to discuss your options with your lawyer sooner than later to ensure that the decisions regarding your health and your finances are in the hands of someone you trust.

My common law spouse doesn’t have a Will, what am I entitled to?

In many ways, being common law spouses is very similar to being legally married spouses. However, one of the significant differences between the two surfaces when a spouse dies without a valid will.

In Ontario, a person who dies without a Will is referred to as “intestate” and the distribution of their estate falls under the intestate rules under Part II of the Succession Law Reform Act, 1990. As detailed in my previous post regarding intestate succession, under this Part, a surviving spouse is the first in line when it comes to the distribution of the estate of their deceased spouse. However, the definition of a “spouse” under Part II of the Succession Law Reform Act specifically refers to legally married spouses. As such, a common law spouse is not entitled to the relief granted under this Part of the legislation.

Additionally, a legally married spouse is entitled, under the Family Law Act, to elect to receive an equalization of the net family property (this is the value of all the property that a spouse owns at the time of death, after deducting any debts and liabilities). Again, this election is only available to legally married spouses.

So, where does this leave a common law spouse when his or her spouse has died intestate?

A common law spouse has the right, under Part V of the Succession Law Reform Act, to bring a claim for dependant support. This Part of the legislation specifically includes common law spouses since it defines a spouse as: two persons who are not married to each other and have cohabited either continuously for a period of not less than three years, or have been in a relationship of some permanence, if they are the natural or adoptive parents of a child. (Please note- this claim is also available for spouses whose spouse died with a will but did not leave adequate support for the surviving spouse)

Although this relief is available, bringing a claim for dependant support can be an expensive and arduous process- given that it will require an application to the Superior Court of Justice.  In the application, the spouse will have to provide evidence to prove that he or she fits into the definition of a spouse under Part V of the legislation. If he or she does fit within this definition, the amount of support is also at issue. When determining a dependant’s required amount of support, the court reviews many factors including, but not limited to, the dependant’s current assets, the dependant’s ability to support his or herself, the dependant’s age and physical and mental health, among others. Additionally, an application by a spouse also allows the court to review the relationship between the dependant and his or her deceased spouse to determine whether or not support should be provided.

This process can be made more complex if there are other beneficiaries who feel that they have a better claim to the estate, or that the common law spouse’s claim is invalid or exaggerated.

Generally, this remedy is only available up to 6 months after date of the grant of letters probate of the will or of letters of administration. If this is the common law spouse’s only alternative, it is recommended that he or she contact a lawyer well before this time limit is up.

The best method to ensure that your spouse is properly supported for upon your death is to have a will drafted. This is especially important for common law spouses as they are not entitled to the same rights and privileges as a legally married spouse. To obtain more information on this topic or to discuss your current situation, please feel free to contact one of our experienced wills and estate lawyers.

What happens if I don’t have a Will? – A review of intestate succession in Ontario

In Ontario, a person who dies without a Will is referred to as “intestate” and the distribution of their estate falls under the intestate rules under the Succession Law Reform Act, 1990. Factors that impact the distribution of the estate include: potential beneficiaries living at the date of death of the deceased, the net value of the estate (the amount after all debts and funeral expenses are paid out), the preferential share (an amount a spouse is entitled to, which is currently set $200,000 in Ontario), and the relationships that the individual has – either legally or through blood relations.

Please note- A “spouse” in the following distribution rules refers to an individual who is legally married. A common law spouse does not have the same legal rights as a legally married spouse under the Succession Law Reform Act. (If you are not legally married but you would like to leave your estate to your common law spouse, the best method in doing so is to ensure you have a Will. For more information, please also see my article regarding the rights a common law partner may have upon the death of their intestate spouse.

If an individual dies intestate, and that individual is married without children, the spouse of the intestate receives the deceased entire estate, absolutely.  An intestate’s spouse also has rights under the Family Law Act, 1990. However, the spouse would have to choose whether to receive under the Succession Law Reform Act or under the Family Law Act, as you cannot receive under both acts – a lawyer should be consulted to assist in making this decision.

If an intestate had a spouse and did have a child, but that child predeceased the intestate, the intestate’s child’s children (the grandchildren) would receive the amount the child would have had he or she been living at the time of the intestate’s death. If there are no grandchildren, it would be treated as if there was no child.

If the intestate has a spouse and children, the distribution is determined based on the net value of the property. If the net value of the property is higher than the preferential share, the spouse receives the $200,000 preferential share outright, and splits any amount over the $200,000 equally with any children of the deceased alive at the time of the death (or any children of predeceased children of the intestate).  If the net value of the estate is under the preferential share ($200,000), the spouse receives the proceeds of the estate absolutely.

If the intestate has no spouse, but has children, the proceeds of the estate are distributed equally between all living children at the time of death of the intestate. Again, if a child predeceased the intestate but has living children (the intestate’s grandchildren), those children would receive the amount that their parent would have had they not died before the intestate.

If the intestate has no spouse, no children, and no living grandchildren, the proceeds of the estate is distributed equally between the parents of the deceased living at the time of death.

If the intestate has no spouse, no children, no grandchildren, and no living parents the proceeds of the estate is distributed equally between the siblings of the intestate living at the time of death. If a sibling predeceased the intestate and has living children, those children would receive the amount that their parent would have had they not died before the intestate.

If the intestate has no spouse, no children, no grandchildren, no parents, and no living siblings, the proceeds of the estate is distributed equally between the nephews and nieces of the intestate living at the time of death. If one of the nephews and nieces predeceased the intestate, their share is split equally between the surviving nephews and nieces equally.

If the intestate has no spouse, no children, no grandchildren, no parents, and no siblings, no living nephews or nieces, the proceeds of the estate is distributed equally between the individuals fitting into the next degree of blood relative living at the time of death, absolutely.

If there are no blood relatives of the intestate, the estate escheats to the Crown- meaning the proceeds of the estate are given to the Crown, Her Majesty the Queen.

It is clear that the distribution of an intestate’s estate can be complicated and convoluted. Not only is the determination of who receives under the estate complex, but the process of properly distributing the estate can also prove to be challenging.

In order to legally act on behalf of an estate, an individual must apply to the Superior Court of Justice for a Certificate of Appointment of Estate Trustee. This application requires, among other things, a renunciation from other potential estate trustees who are entitled in priority to be named as estate trustee, consents from all potential beneficiaries of that individual’s appointment, a valuation of the estate, and an affidavit by the individual applying to become estate trustee swearing their intention to act faithfully when distributing the estate. In addition, a monetary bond filed with the Court could also be required, depending on the situation. These applications generally require the assistance of a lawyer, so if you find yourself in this situation, please contact a lawyer to discuss the option available to you.

This article is a brief overview and generalization of the rules of intestate succession. There are many specific rules and laws that govern this area of law and as such, certain facts and realities impact your situation. If you do not have a Will and would like more information about it before contacting a lawyer, please review my article regarding the basics of why a Will is important.  Please also contact our office and one of our wills and estates lawyers will be happy to answer any questions you may have.