Power of attorney for property

Linda Kowalczyk is sixty-one, a retired French teacher in Hamilton whose family came from Poland. Her mother, Irena, is eighty-eight, sharp as a tack. Three weeks ago Irena had a mild stroke. When Linda went to the bank to pay her mother's hydro bill from her account, the teller told her, politely, that she couldn't discuss it with her.

So here's the question. What document would have let Linda help, and how do families get it right?

First, this is general information, not legal advice. Every family is different, and a lawyer should review your own documents. What follows comes from the law itself, Ontario's Substitute Decisions Act. The document Linda needed is a continuing power of attorney for property. It lets someone your parent trusts handle their money and property.

The word continuing matters. A continuing power of attorney keeps working if your parent becomes mentally incapable. A non-continuing one stops working at exactly that moment. To make one, your parent must be eighteen or older and capable. That means knowing roughly what they own, knowing the attorney must account for it, and knowing they can cancel it while they're capable.

The attorney must be at least eighteen, and there can be more than one. No special form is required. The document needs two witnesses, both there together when your parent signs. Some people can't witness: the attorney or the attorney's spouse, your parent's own spouse or partner, your parent's children, and anyone under eighteen.

There's no government registry for powers of attorney, so the original matters. A bank may ask to see the original or a notarized copy. Be careful: signing a bank's own form could cancel an earlier general one. A continuing power of attorney usually works as soon as it's signed, unless it says otherwise. Adding conditions about when it starts can cause delays.

An attorney must act honestly and for your parent's benefit, not their own. They must keep accounts of every transaction. They can be personally liable for losses, and a court can order them to show their accounts. And they can never make a will for your parent. Ontario offers a free power of attorney kit, and the free Steps to Justice website has a guided tool.

Now, their side. This is Irena's choice. She decides who she trusts with her money, and she makes that choice while she can. It's fair to guess that planning can feel like giving something up. It's really the opposite. A power of attorney is how Irena keeps control, by choosing her own person now, instead of leaving it to a court process later.

Let's change one fact. Irena did sign a power of attorney years ago, for a winter she spent in Florida. But it was non-continuing. It works only while she's capable. If the stroke had left her unable to manage her money, it would have stopped working just when Linda needed it most. What kind it is matters as much as having one.

The mistake families make is waiting for a crisis. After a serious stroke, or as dementia progresses, a parent may no longer be capable of signing. Then a family member may have to apply to court to become guardian, which is a much longer road. The best time to sign is when it still feels unnecessary.

Here's the rule, in one breath. Make it continuing, sign it while your parent is capable, and know where the original is.

This week, ask your parent two questions. Do you have a power of attorney for property? And where is the original? If the answer is no, a lawyer or a legal clinic can help, including the Advocacy Centre for the Elderly, a free legal clinic for older adults.

Next time, the other power of attorney, for personal care, and who decides when there isn't one.