Power of Attorney for Property: Selling a Home in Ontario

If a parent or relative named you as attorney under a continuing power of attorney for property, you may be wondering whether you can sell or mortgage their house, perhaps to pay for care. The answer depends on what the document says, whether it is valid, and whether it is in effect.

This article explains the general rules in Ontario. It is not a substitute for advice on your own document, which a lawyer should review before you sign anything about the property.

What an attorney for property can do

Under the Substitute Decisions Act, 1992, an attorney under a continuing power of attorney for property may do anything about the grantor's property that the grantor could do if capable, except make a will. A house is property, so this power generally reaches decisions such as selling it or borrowing against it.

The document itself can still add instructions or limits. Read it closely, and ask a lawyer if the wording is unclear.

Is the document valid and in effect?

Before you act, check that the document is valid. To make a power of attorney for property, a person must be mentally capable and at least 18 years old. A continuing power of attorney for property must be signed in the presence of two witnesses, and each must sign.

Certain people cannot witness. These are the attorney or the attorney's spouse or partner, the grantor's spouse or partner, the grantor's child, and anyone under 18.

Timing also matters. An attorney for property can act right away unless the document says otherwise. The power of attorney may instead take effect on a specified date or when a specified contingency happens, such as the grantor's incapacity. If your document depends on an event, be ready to show that it has happened.

Special issues when the home is sold or mortgaged

A buyer's lawyer or a lender will usually want to see the power of attorney and confirm it is in effect. Having your documents ready can prevent delays on closing.

If the home is a matrimonial home, there is another rule to consider. Under the Family Law Act, no spouse may dispose of or encumber an interest in a matrimonial home unless the other spouse joins in or consents, or another listed exception applies. Whether this affects your situation depends on who owns the home and who lives there, so get legal advice.

• Check that the document is signed and witnessed as the law requires.
• Check whether it is in effect now or only on a date or event.
• Check whether the home is a matrimonial home.
• Check for any instructions or limits written into the document.

Your duties as attorney

An attorney under a continuing power of attorney is a fiduciary who must act diligently, honestly, with integrity and in good faith for the grantor's benefit. That means the sale or mortgage must be for the grantor's benefit, not your own or another family member's.

The attorney may take annual compensation under the prescribed fee scale. Keep clear records of every decision and every dollar, including the reasons for selling and where the proceeds go.

What to do next

• Gather the original power of attorney and any related documents.
• Confirm whether the document is in effect and whether any triggering event is needed.
• Ask a lawyer to confirm the document is valid and how it applies to the sale or mortgage.
• Tell the real estate agent and lawyers early that you are acting as attorney.
• Keep written records of your decisions, the reasons for them and all money handled.

Frequently asked questions