Are my Powers of Attorney Valid outside of Ontario?

You have prepared a continuing power of attorney for property, and a power of attorney for personal care in Ontario. Now you want to travel, and are wondering about what happens when you are outside of Ontario. Are your powers of attorney still valid there?

In short, the answer to this is – it depends where. To get a definitive answer, you would need to speak with a lawyer in the jurisdiction in which you are traveling.

However, you cannot assume that your power of attorney is valid outside of Ontario, even within Canada. In fact, if you regularly travel to a particular jurisdiction (for instance, say you own a condo in Florida or Arizona to which you regularly travel), it would make sense to prepare powers of attorney under that jurisdiction’s law as well, so that you have valid powers of attorney for when you are there. When doing so, you need to make sure that your multiple powers of attorney do not invalidate each other.

Even within Canada, the legal situation varies by province and territory. Note that there are currently proposals under consideration to harmonize each province’s and territory’s recognition of other provinces’ and territories’ powers of attorney. Let’s look at the Canadian situation.

Alberta, Saskatchewan, and Manitoba, the Northwest Territories, Nunavut, and the Yukon
These three provinces and three territories have legislation that specifically recognizes powers of attorney for property from other jurisdictions. Alberta is a leader in this field. In Alberta, section 2(5) of the Power of Attorney Act recognizes what we would call a power of attorney for property as valid, so long as the power of attorney is valid in accordance with the law of the jurisdiction in which it was created.

The remaining provinces and territories listed in this section have legislation that is very similar to the Alberta legislation for powers of attorney for property.

In contrast, section 7.3 of the Personal Directive Act recognizes what we would call a power of attorney for personal care as valid if it is made in accordance with the formalities of the Alberta legislation.

Saskatchewan, Manitoba, and the Yukon have legislation that is very similar to the Alberta legislation of powers of attorney for personal care. Nunavut has no legislation regarding dealing with powers of attorney for personal care from outside of the territory. In the Northwest Territories, to be valid a power of attorney for personal care must either comply with the formal requirements of the Personal Directives Act or have a lawyer who practices law in the jurisdiction in which the power of attorney was prepared certify that it was made in accordance with the formalities of that jurisdiction.

British Columbia
British Columbia has the most detailed statutory scheme of any province or territory. British Columbia has laid out in section 4 of the Power of Attorney Regulation made pursuant to the Power of Attorney Act detailed criteria for recognizing whether what we call a power of attorney for property is valid. The power of attorney for property will be valid only if the following requirements are met:
(1) It will only be valid if it is valid in accordance with the law of the jurisdiction in which it was created.
(2) It is still effective in the jurisdiction in which it was created.
(3) At the time of execution, the grantor was ordinarily resident outside of British Columbia, but in Canada, the United States, the United Kingdom, Australia, or New Zealand.
(4) It is accompanied by a certificate from a lawyer who practices law in the jurisdiction in which it was prepared, indicating that the above is true.

British Columbia has laid on in section 9 of the Representation Agreement Regulation made pursuant to the Representation Agreement Act detailed criteria for recognizing whether what we call a power of attorney for personal care is valid, and the requirements are essentially the same as for a power of attorney for property, discussed above.

New Brunswick, Newfoundland & Labrador, Nova Scotia and Prince Edward Island
These four provinces do not have legislation that deals with powers of attorney for property from other jurisdictions. In these provinces, you may need to apply to court to have your power of attorney recognized.

Nova Scotia and Prince Edward Island do have legislation to deal with powers of attorney for personal care from other jurisdictions, and will recognizes these powers of attorney so long as they comply with the formalities of there own jurisdiction, or the jurisdiction in which the power of attorney was executed, or the jurisdiction in which the grantor was ordinarily resident. In Prince Edward Island, you can rely on a lawyer’s certificate stating that your power of attorney complies with the proper formalities of the jurisdiction in which it was created.

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If you are considering a will, power of attorney, or trust — or have already made your decision — you’re invited to call or email us. We’ll explain how you can protect your loved ones and your assets. You can call us at (613) 519-0320 or email us using our contact form here.

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