Can a Power of Attorney Transfer Title to Property in Ontario

If you have been named as attorney for property, you may be wondering whether you can sell the grantor's house, put it in your name or give it to a family member. The answer depends on what the document says and on strict duties the law puts on you.

This article explains the general rules in Ontario. It is not a substitute for advice on your document, because small wording differences matter.

What the power of attorney allows

Under Ontario's Substitute Decisions Act, a continuing power of attorney for property may authorize the attorney to do anything with the grantor's property that the grantor could do, except make a will. Ontario guidance confirms this can include maintaining or selling the grantor's house.

So selling a home is generally within reach if the document allows it. Whether the document has limits, conditions or a start date (for example, only after incapacity) is something you need to read carefully.

Selling is different from gifting

An attorney acts for the grantor, not for themselves. Gifts and loans to the incapable person's friends or relatives are allowed only if there is reason to believe, from intentions the person expressed before incapacity, that they would make them if capable. Transferring a home to yourself or a relative for little or nothing is a serious step that invites scrutiny.

If the grantor's will leaves the property to someone as a specific gift, a guardian of property must not dispose of it when they know of that gift, subject to limited exceptions. The gift and loan limits are written for guardians of property, and a lawyer can confirm how they apply to an attorney under your document.

Rules that still apply to the transaction

• Spousal rights: no spouse may sell or mortgage an interest in a matrimonial home unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it. A transaction that breaks this rule may be set aside.
• Designated homes: consent is not needed for a property that is not the designated matrimonial home where a joint designation of another property is registered and not cancelled.
• Land transfer tax: there is no general exemption for gifts of land, and tax is payable on a mortgage the recipient takes on.
• Income tax: a gift, or a transfer to a non-arm's-length person for less than fair market value, is deemed to be made at fair market value, which can trigger a capital gain. The exception is a transfer to a spouse or common-law partner where both are resident in Canada: capital property is generally deemed transferred at cost, so no gain arises immediately, although the transferor can elect out on their return. If the home was a principal residence, it must be reported and designated on Schedule 3.

Selling to someone at arm's length at a fair price is usually a very different tax and legal picture than gifting. If you are unsure which situation you are in, pause and get advice.

Records, registration and the document itself

A fiduciary must keep accounts of all property transactions. Keep the sale or transfer paperwork, appraisals, and notes on why each decision was in the grantor's interest.

Ontario's land registration system does not accept powers of attorney that contain personal information such as government ID or bank account details. If your document includes that kind of information, you may need to address it before it can be used in a land transaction. Land documents are registered electronically through Teraview by authorized account holders. How the registration will be handled in your situation depends on the facts, so it is worth confirming with a lawyer.

An attorney may also need to sign land documents when the grantor is a surviving joint tenant whose co-owner has died. If an attorney signs a survivorship application for a surviving joint tenant, a covenant to indemnify the Land Titles Assurance Fund is required, though since June 7, 2014 it is not required if a spousal statement and a law statement on the deceased's spousal rights are provided. Confirm current requirements with a lawyer.

What to do next

• Read the power of attorney in full and note any limits, conditions or start dates.
• Confirm whether the home is a matrimonial home and whether a spouse must consent.
• Check the grantor's will, if there is one, for a specific gift of the home.
• Decide whether this is a sale at a fair price or a gift or low-price transfer, and ask an accountant about capital gains.
• Start a clear record of every transaction and decision.
• Speak to a lawyer before signing anything that moves title to you or a relative.

Frequently asked questions