Power of Attorney for Property – Explanation by Ivan Steele, Toronto Family Lawyer

Toronto Family and Wills Lawyer

A durable power of attorney for property — or financial power of attorney — is a simple, inexpensive, and reliable way to arrange for someone to manage your finances if you become incapacitated (unable to make decisions for yourself). A Continuing Power of Attorney is a legal document in which a person gives someone else the legal authority to make decisions about their finances if they become unable to make those decisions themselves. The person who is named as the attorney does not have to be a lawyer. The power of attorney is called “continuing” because it can be used after the person who gave it is no longer mentally capable. Some people use the word “durable” which means the same as “continuing”.Power of Attorney for property is an important document to make, but it is even  more important to your family. A power of attorney for property  can be drafted so that it goes into effect as soon as you sign it. It is important to specify  that you want the power of attorney to be durable or continuing. Power of attorney generally gives the designated person broad authorization to handle all of your finances. But you can give your attorney as much or as little power as you wish. Think carefully before you limit the scope of your attorney’s authority. If you become incapable of making financial decisions and your attorney does not have full authority, it may be necessary for your attorney, a family member, friend or the Public Guardian and Trustee to be appointed as your guardian in order to manage the balance of your property. In that case, a management plan must be filed and security may be required. You may want to give your agent authority to do some or all of the following:

  • use your assets to pay your everyday expenses and those of your family
  • buy, sell, maintain, pay taxes on, and mortgage real estate and other property
  • collect Social Insurance or other government benefits
  • invest your money in stocks, bonds, and mutual funds
  • handle transactions with banks and other financial institutions
  • buy and sell insurance policies and annuities for you
  • file and pay your taxes
  • operate your small business
  • claim property you inherit or are otherwise entitled to
  • transfer property to a trust you’ve already created
  • hire someone to represent you in court, and
  • manage your retirement accounts.

Your continuing power of attorney for property automatically ends at your death, when your will kicks in. That means that you cannot give someone authority to handle things after your death, such as paying your debts, making funeral or burial arrangements, or transferring your property to the people who inherit it. If you want your agent to have authority to wind up your affairs after your death, use a will to name that person as your executor.

You can choose anyone you want as your attorney as long as he or she is 18 years of age or more. Many trust companies are prepared to act as attorney and charge a fee for this service. Some individuals choose this option because they want an attorney who is professional and impartial. It is important to know that by making this power of attorney, you revoke (cancel) any other continuing power of attorney for property that you have made before. If you have made such a power of attorney before and you don’t want to revoke it, you should consult with a lawyer so that he or she will make the necessary changes to this form. If you want more than one person involved in your financial decisions, you can name more than one person to be your attorney for property. But you are not required to do so. On the other hand, you may decide not to name more than one attorney if you’re concerned about the possibility of disagreements or if you believe it may be difficult for others to deal with more than one person concerning your finances.

Your continuing power of attorney will end in several circumstances, most common of which are:

  • You revoke it. As long as you are mentally competent, you can revoke a durable power of attorney at any time.
  • A court invalidates your document. It’s rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.
  • No attorney is available.To avoid this problem, you can name an alternate attorney for property in your document

Advertisements

Foreign Divorce Opinion Letters in Ontario – Explanation from Ivan Steele, Toronto Family and Divorce Lawyer

Wedding dress is done, caterers are on a standby and the guests have RSVPed. You are ready to get married! Maybe not – if you were previously divorced outside Canada. Before dropping by the City Hall to apply for your marriage license, you will need to submit, among other documents, a letter from an Ontario lawyer that your divorce would be recognized for purposes of determining your marital status in Canada. This additional, mandatory authorization from the Ontario government must be presented before the marriage license is issued, along with a completed marriage license application signed by both you and your intended spouse.You also need to provide:

(2) The original divorce or a copy of the divorce certified by the administrative officer of the court in the granting jurisdiction, or sealed or otherwise properly authenticated by the court. When the divorce is in a language other than English or French – a certified translation, is also required.
(3) A copy of a legal opinion of an Ontario solicitor, such as myself, addressed to both of you, stating that the divorce would be recognized as valid in the Province of Ontario and providing the legal reasons for recognition, which must include reference to the relevant facts and the specific legislative basis for recognition.
(4) Statement of Sole Responsibility, which states that the validity of a foreign divorce remains the responsibility of the license applicant, and that the Ontario government assumes no responsibility if the foreign divorce turns out to be invalid.

In the foreign divorce opinion letter a lawyer will analyze the person’s unique circumstances and apply not only current legislation, but also case law. A divorce from another country is likely valid in Canada if either: (1) when you obtained your divorce you had a “real and substantial” connection to the place where you obtained the divorce; or (2) when you obtained your divorce, either you or your spouse had been ordinarily resident in the place that granted the divorce for a year beforehand. Generally speaking, if you normally lived in the place where you divorced, the chances are good that your divorce will be recognized in Canada. On the other hand, if you obtained an “express divorce” in a place that does not have residency requirements or you otherwise had nothing to do with that place, the chances are that your divorce will NOT be recognized in Canada. As an illustration, if you came to Canada from Pakistan and you live in Canada permanently, but you obtained a divorce in your original country, your divorce will likely NOT be recognized in Canada and Ontario. Divorces obtained by fraud or through coercion are also not recognized.

Foreign Divorce Opinion Letters, drafted by a Toronto or Ontario lawyer must include a careful consideration of statutory provisions contained in the Divorce Act, but they must also take into account the pre-existing case law. This means that the ground for recognition of foreign divorces in Canada are fairly wide.

The starting point, and the most relevant legislative reference is section 22 of the Divorce Act, which provides:

(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

A thorough legal analysis does not not stop here. A foreign divorce opinion letter lawyer ought to keep in mind the operation of subsection 22(3) which states that  statutory provisions do not limit or restrict any existing rule of law applicable to the recognition of foreign divorces. This means that an overly narrow and technical approach to drafting foreign divorce opinion letter may be deficient.  Often, a determination of “real and substantial connection” with a jurisdiction is highly fact specific and could lead to a recognition of a divorce under  subsection 22(3), even when the divorce would otherwise not be recognizable under subsection 22(1).

With letter in hand, you need to mail the entire package to the Office of the Registrar General. If you are getting married in a City Hall, you need to contact that particular place directly for availability. Clearly, if you and your spouse were both divorced outside of Ontario, you will need two separate foreign divorce opinion letters. Please note that not all Foreign Divorce Opinion Letters are created equal. The quality of legal analysis will differ from one lawyer to another, so choose wisely.