- The limits of an attorney's authority depend on the power of attorney document and the law, so confirm them with a lawyer before acting.
- A transfer to an adult child without payment is presumed to be held in trust, not given as a gift.
- Adding a joint owner can have tax, creditor, and estate consequences.
If you act as attorney for property, someone may ask you to add them to the owner's house title or bank account. Sometimes the request comes from you, as the person closest to the owner, or from a relative who wants to help.
This article does not set out exactly what a power of attorney allows, since that depends on the document and the law. It explains the risks that follow such a change so you can ask the right questions before you sign anything.
Start with the document and a lawyer
Read the power of attorney carefully. Look for any limits or instructions. Whether an attorney may convey the owner's property to themselves or to another person depends on the wording of the document and on the law, and a lawyer should confirm it before you act.
The statute does allow a person to convey property to themselves jointly with another person, and to convey property to themselves as they could to someone else. Those provisions describe how title can be changed. They do not tell you that an attorney is permitted to use them for their own benefit.
Why gifts to an attorney or relative get challenged
For transfers made without payment, the starting rule is a presumption of resulting trust. The person receiving the transfer bears the onus of showing a gift was intended. An adult child added to a parent's asset without paying is presumed to hold it in trust for the parent and, on death, for the estate.
Courts may look at the wording of documents, who controlled the funds, the granting of a power of attorney, and the tax treatment of the account. If you hold the power of attorney and also benefit from the change, expect your conduct to be examined.
A transfer between joint owners can also be liable to be set aside if a fiduciary relationship or another factor prevents it.
Consequences of adding a joint owner
| Issue | What to know |
|---|---|
| Survivorship | Survivorship property goes to the surviving owner and not through the will. |
| Access to funds | Any named holder of a joint bank account can withdraw at any time. |
| Creditors | If one holder has financial problems or goes bankrupt, creditors could make claims on the money. |
| Tax | A gift of capital property is treated as a sale at fair market value when given, and the automatic rollover applies to spouses and common-law partners, not children, except qualifying farm or fishing property. |
| Matrimonial home | A spouse generally may not dispose of or encumber a matrimonial home without consent, a release, a court order, or a valid designation. |
| Support claims | Joint property at death can be counted in the net estate for a dependant's support claim. |
Protecting yourself as attorney
- Do not act until a lawyer has reviewed the power of attorney and the proposed change.
- Ask the bank what happens if one holder dies and whether the survivor can access the funds.
- Keep clear records of every transaction made on the owner's behalf.
- Keep the owner's money separate from your own.
- Consider whether a transaction benefits the owner, or only you or your relatives.
- Talk to an accountant about tax before any transfer.
What to do next
If you have been asked to add someone to title or an account, pause and get legal advice first. If a transfer has already been made, look up title through OnLand and keep all related documents.
If you are a family member worried about a transfer, a lawyer can explain what options exist. An application for dependant support generally cannot be made more than six months after the certificate of appointment is granted.
Frequently asked questions
Can I add myself to the owner's bank account as attorney?
That depends on the power of attorney document and the law, and you should have a lawyer confirm it first. Even if it is allowed, a transfer without payment may be presumed to be held in trust for the owner and later their estate.
What happens if the owner dies after I am added?
If it is a true joint account or joint tenancy, the property generally goes to the survivor and not through the will. Heirs may still challenge the survivor, who may need to show the deceased intended a gift.
Are there tax risks?
Yes. A gift of capital property is treated as a sale at fair market value when given. An accountant can explain how that applies.
Where should I check how title is held?
Land records, including the parcel register, are searched through OnLand.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 40 (e-Laws) — Ontario e-Laws
- Family Law Act, R.S.O. 1990, c. F.3, s. 21(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 72(1)(c)-(d) (e-Laws) — Ontario e-Laws
- Ontario.ca, Search land property records — ontario.ca
- Pecore v. Pecore, 2007 SCC 17 (CanLII) — canlii.org
- Canada.ca (ESDC), Powers of attorney and joint bank accounts — canada.ca
- Canada.ca (FCAC), Joint accounts — canada.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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