Can an Attorney for Property Sell My House in Ontario?

Many families end up in this position: a parent or relative can no longer manage their affairs, you are named in a power of attorney for property, and the house needs to be sold, perhaps to pay for care. It is a big step, and you need to know whether you are allowed to do it and what the lawyer will ask for.

This article covers when an attorney for property may sell, the paperwork a lawyer reviews at registration, and the points that can restrict a sale. Every document is different, so treat this as a guide to the questions to ask.

What an attorney for property can do

Ontario's guidance says the attorney need not be a lawyer, the grantor must be 18 or older and mentally capable when making the document, and typical duties include keeping up or selling the house. So selling a home is a recognized part of the role.

The attorney can usually act right away unless the document says it takes effect only on incapacity. That is why you should read the wording closely. If the document is a continuing one that only starts on incapacity, you may need to show that the trigger has happened. What proof is needed depends on the document itself.

The document may also limit what you can do. Whether a particular sale is permitted depends on the exact terms, so have a lawyer read it before you list the property.

What the lawyer must do at registration

When an individual registers a document under a power of attorney, a law statement is required. The lawyer must review the power of attorney with the client and the attorney. The original signed and witnessed power of attorney, or a notarial or certified copy, must be scanned into the electronic registration.

The electronic registration uses statement 2912, which confirms the power of attorney is still in full force and effect and has not been revoked, plus a non-law statement that it is limited (2927) or general (2928). A revocation uses statement 2914 for a court order or 2916 for the donor's death.

Documents signed under a corporate or bank power of attorney do not need the law statement. The attorney instead states they are acting within the scope of the power of attorney.

The registration guidance on these statements is older, so your lawyer will work from the current requirements.

Documents to gather

• The original signed and witnessed power of attorney, or a notarial or certified copy.
• Details of the property: address, how title is held and any mortgage.
• Any evidence the document requires if it takes effect only on incapacity.
• Information about the grantor's spouse, if any, and who lives in the home.
• Records you have kept of the grantor's accounts and decisions.

Situations that can restrict or delay a sale

Spousal consent rules for selling a matrimonial home are one area to confirm specifically with a lawyer, because they depend on the facts and the current statute.

What to do next

Before anything is signed, speak with a real estate lawyer. Since the lawyer must review the power of attorney with you, bring the document to the first meeting rather than the last.

Also remember the tax side. CRA says all sales of real property in Canada, including a principal residence, must be reported for 2016 and later tax years, even with no gain or a fully exempt gain, and the exemption is allowed only if the sale is reported. Ask an accountant who will report the sale and how.

• Read the document for when it takes effect and any limits on selling.
• Keep records of every step and of how sale proceeds are used.
• Get legal advice on spousal rights and any co-owners before listing.
• Ask your lawyer and accountant about reporting the sale.

Frequently asked questions