This blog was written by Sally Lee, LLB – Estate and Trust Consultant with Scotia Wealth Management.
Some readers may ask the question, what’s the difference between a General Power of Attorney for Property (“GPOAP”) versus a Continuing or Enduring Power of Attorney for Property (“CPOAP”)? To be completely honest, the difference can be life-altering.
Recently, I came across a situation where Mrs. X, who executed a general GPOAP appointing her son, became incapable. The son’s understanding was that he had full authority under the GPOAP to make financial decisions on behalf of his mother. Unfortunately, that was not the case.
Generally speaking, the GPOAP covers one’s financial affairs, however, it cannot be invoked if the grantor becomes mentally incapable, which defeats the purpose of having such a document in the event of incapacity. Then why have it in place? Well, one may want to appoint an attorney to look after his or her financial affairs if they will be away for an extended period of time although technology has drastically altered the manner in which we now manage our financial affairs.
In Mrs. X’s case, the son must now hire counsel and apply to have himself appointed as his mother’s guardian of property, which would now involve the Public Guardian and Trustee. Had Mrs. X executed a CPOAP, a guardianship application could have been avoided.
Planning is key. If you have a General Power of Attorney for Property, speak to your estate planner and ensure that you update it to a Continuing Power of Attorney for Property.
Pauline MorrisJanuary 10, 2019 - 4:42 pm
Sally, I hope the son would be able to apply as Guardian of Property directly, unless he CHOOSES to go by s. 16 SDA to have OPGT appointed and then request to take it back from them. The risk to that plan is that they would not comply. As you say, GPOAP is not a Continuing Power of Attorney for Property, and is often limited to just one or two specific functions, and that’s a risk if the tasks go beyond that. But I understand that the old GPOAP is still valid, even though the law changed after 1992. Sounds like his document was very old, and should have been updated regularly. Thanks for your observations.