Are my “Foreign” Powers of Attorney Valid in Ontario?

You’ve moved to Ontario from another jurisdiction – even just another province or territory in Canada. Is your continuing power of attorney for property or your power of attorney for personal care valid in Ontario?

In short, possibly, particularly if your power of attorney was made elsewhere in Canada, and often the United States, the United Kingdom, Australia, and New Zealand. However, generally if there are any questions as to the validity of your power of attorney from outside Ontario, it is quicker and more certain to have new Ontario powers of attorney prepared.

Ontario has legislation governing the recognition of powers of attorney from outside the province, set out below.

Powers of Attorney for Property
Section 85 of the Substitute Decisions Act states that a power of attorney is valid in Ontario if it complies with the internal law of (i) the place where it was executed; (ii) the place where the grantor was domiciled; or (iii) the place where the grantor was habitually resident.

Powers of Attorney for Personal Care
The test is the same as for powers of attorney for property. A power of attorney is valid in Ontario if it complies with the internal law of (i) the place where it was executed; (ii) the place where the grantor was domiciled; or (iii) the place where the grantor was habitually resident.

Internal Law of Ontario
What makes a power of attorney valid in Ontario?

1. Age of grantor – you must be at least 18 years old to create a power of attorney for property, and at least 16 years old to create a power of attorney for personal care.

2. Mental capacity – you must be of sound mind to create a power of attorney.

3. The power of attorney must be in writing.

4. The power of attorney must be signed and dated.

5. Witnesses – you must have two witnesses, who are not the appointed attorneys, sign the power of attorney.

In Conclusion
If your “foreign” power of attorney meets the requirements listed above, it is likely valid in Ontario. However, if it doesn’t meet those requirements, it still may be valid in Ontario, but you’ve got to prove that it is valid where you were domiciled or habitually resident. In that case, if you still have capacity to create new powers of attorney, it is likely easier, quicker, and cheaper to get new Ontario powers of attorney prepared. But if a person no longer has capacity to create a new power of attorney in Ontario, then a lawyer from the jurisdiction in which the power of attorney was created will need to be retained to provide evidence that a power of attorney is valid.

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