Planning Ahead: The Role and Benefits of a Power of Attorney at Every Stage of Life

Most Canadians have not put plans in place for a time when they may be unable to make decisions for themselves. Despite the reality that illness, injury, or unexpected life events can affect decision-making at any age, research shows that nearly two‑thirds of Canadians (65%) have not made powers of attorney (POA).[1]

Many people assume that powers of attorney are only necessary later in life or only relevant for those with complex assets. While those scenarios are indeed reflective of where a POA is commonly needed, they represent only a fraction of the situations where one becomes necessary. At its core, powers of attorney are about decision-making - who will speak for you if you cannot - and those decisions go well beyond age and finances, to include health care, living arrangements, and day-to-day personal care.

Who Makes Decisions When You Can’t?

A power of attorney is a legal document that authorizes someone you trust to make decisions on your behalf regarding your property (e.g., finances and real property) and your personal care. In Ontario, different powers of attorney can address different types of decision-making[2], including:

• A Continuing Power of Attorney for Property – This is a document in which you can name  a trusted person or people to manage your property and financial matters such as paying bills, managing investments, dealing with real property, and accessing digital assets including online investment platforms and cryptocurrency holdings, but only if it is properly drafted to do so; and
• A Power of Attorney for Personal Care - This is a document in which you can name a trusted person or people to make decisions about your personal care matters such as healthcare, health treatment, nutrition, housing, clothing, safety, and personal support services, if you become incapable of doing so.

When Decision-Making Authority is Unclear

When no power of attorney is in place and a person becomes incapable of making decisions for themselves, important decisions may be delayed or require court involvement. In these situations, decisions about finances, care, or living arrangements may be made by court-appointed decision-makers who, while acting in the individual’s best interests, are not likely to have in-depth knowledge of their values, family dynamics, or personal priorities.

Even where well-meaning family members are available, the absence of a designated attorney can create stress and conflict. Partners, parents, siblings, or adult children may have differing views about what should be done, particularly in emotionally charged or time-sensitive circumstances. Disagreement can lead to strained relationships, delays in care, and, in some cases, costly and avoidable litigation.

Ontario's Health Care Consent Act (HCCA) does establish a default hierarchy of substitute decision-makers, including spouses, partners, parents, and siblings, for situations where no POA exists.[3] However, this hierarchy may not reflect your actual wishes, and the person who ends up making decisions for you may not be the one you would have chosen. A POA lets you decide in advance, rather than leaving it to a legal default. For example, the HCCA defines “partner” as one of two persons who have lived together for at least one year and share a close personal relationship of primary importance in both persons' lives.[4] This could be a roommate who you have known for a relatively short time and, although you may share a close personal relationship of primary importance, this may not be the person you would choose to make your important and sensitive personal care decisions.

Who Needs a POA and When?

Putting a power of attorney in place can help avoid decision-making delays and involvement of the courts, reduce the risk of family conflict during already stressful periods, and minimize the legal costs that come with resolving disputes. Most of all, it provides peace of mind that decisions will be made by a trusted decision-maker in accordance with your wishes.

It is worth noting that a power of attorney is not necessarily permanent. Provided you have the requisite mental capacity to do so, a POA can be revoked or updated, making it a flexible planning tool.

Life transitions such as high school or university/college graduation, career changes, health shifts, accidents, or retirement are natural moments to pause and reflect on your planning needs, ensuring that appropriate legal supports are in place and adjust with you as necessary.

For young adults especially, the need can feel abstract. Consider two real situations where a POA makes all the difference.

If you were in a serious accident tomorrow, someone may have the legal authority under the HCCA to make decisions about your health care on your behalf, but it may not be who you would have chosen, and they may not know your wishes, your values, or your priorities. A POA ensures the right person is making those calls, not whoever happens to be first in line under the law. In addition to this, if you received a personal injury settlement as a result of the accident, and you suffered a brain injury and were mentally incapable of managing those settlement proceeds, no one is automatically authorized to manage those proceeds for you, not even your parents. There would be significant delay in accessing those settlement proceeds for your care and legal costs in the tens of thousands of dollars to put a court-appointed guardian of property in place for you, all of which could have been avoided if you had made POAs.

Or consider you are a young professional hospitalized unexpectedly for even a short period. Without a POA, whether you are mentally incapable or not, your rent may go unpaid, your accounts may be inaccessible, and your employer may be unable to receive any information, all while you are focused on recovering. Inability to manage property does not always look like a dramatic emergency, but can have a significant impact on your affairs.

For parents, in particular, there is often comfort in knowing that their independent adult children have POAs in place should something unexpected occur. Many people are surprised to learn that once a child turns 18, the child’s parents have no automatic legal authority over their property (i.e., finances, settlement proceeds, real property, etc.) and may not have legal authority over their healthcare decisions, even in an emergency. Without a POA for personal care, a parent could be turned away at a hospital and unable to receive information or give direction about their adult child's care if the adult child has a higher ranked automatic substitute decision maker under the HCCA.

In general, our guidance is that any person over the age of majority should consider having powers of attorney for property and personal care in place. This includes:

• Young adults, such as post-secondary students and young professionals
• Parents and caregivers
• Older adults
• Individuals with blended families, dependants, or complex financial arrangements

Choosing a Trusted Decision-Maker

There is no single “right” power of attorney arrangement. Choosing who will act on your behalf when the need arises requires careful thought and assessment. Suggested factors to consider include:

• The individual’s capacity to understand and carry out responsibilities
• Geographic proximity and availability
• Alignment with your values and priorities
• Ability to make sound decisions under pressure
• Potential conflicts of interest
• Willingness to communicate and consult with other supportive family members and friends

These considerations often benefit from independent legal guidance to ensure they are well thought-out and properly documented.

Planning Ahead for Peace of Mind

For many people, there may come a time when a trusted substitute decision-maker is needed – who holds this important responsibility should not be left to chance.

A power of attorney, drafted with appropriate legal advice, allows individuals of all ages and stages to plan for the unexpected and ensure that decisions are made by someone they have chosen and trust. An estates and capacity law lawyer can help ensure that your powers of attorney reflect your circumstances, comply with legal requirements, and work as intended when they are needed most.