Can an attorney for property sell a matrimonial home on behalf of an incapable spouse in Ontario?

An attorney for property acting under a valid power of attorney, governed by Ontario's Substitute Decisions Act, 1992, generally steps into the incapable spouse's shoes for property and financial decisions, including potentially selling real estate on their behalf. But this authority doesn't override the separate protection the Family Law Act gives to a matrimonial home — the requirement for spousal consent before the home is sold or encumbered still applies, and an attorney acting for the incapable spouse generally can't simply substitute their own consent for that requirement without addressing it properly.

Where the other spouse is the one initiating or agreeing to the sale, and the incapable spouse's attorney is also involved, the transaction needs to reflect that the incapable spouse's interests, through their attorney, and the consent requirement itself, have both been properly addressed, since a sale involving an incapable spouse's matrimonial home interest carries extra risk of later challenge if it wasn't handled correctly. Given the combination of substitute decision-making rules and matrimonial home protections, this is a genuinely technical situation, and anyone involved, whether the acting attorney, the other spouse, or a buyer's lawyer who becomes aware of it, should get legal advice specific to the facts before proceeding.