Wills and powers of attorney, drafted together.

The three documents, and why they are drafted together

Most Ontario estate plans rest on three documents: a will, a continuing power of attorney for property, and a power of attorney for personal care. Each one covers a different stage of life. Your will speaks only after you die. The two powers of attorney speak while you are alive but unable to decide for yourself, for example after an accident, a stroke or the onset of dementia. Ontario’s guidance is direct about what happens without them: your family, including your spouse, cannot automatically step in to make financial decisions for you, and may have to go to court.

We prepare the three together because they have to agree with each other. The person managing your money while you are ill should know what your will says about the family business. The person making health decisions should be someone who will work well with your attorney for property. And all three are usually signed at the same meeting, in front of the same two independent witnesses, so nothing is left half done. This page is part of our estate planning practice for families and business owners across Ontario.

Your will

Your will names the executor who will settle your estate (Ontario law calls this person your estate trustee), the guardian for any young children, and who receives what. It can set up trusts, leave specific gifts, and say what happens to your share of a business. Ontario’s rules for a valid will are short and strict: it must be in writing, signed at the end, and signed in front of two witnesses who are present together and who then sign too. We set those rules out in what makes a will valid in Ontario.

If you own shares in a private corporation, we may recommend a primary and a secondary will, so the shares can usually pass without probate or Estate Administration Tax. How two wills work.

A will is also where you name a guardian for your children, and it decides who looks after their inheritance. Ontario’s guidance explains that money owed to a child is generally paid into court until the child reaches the required age, usually 18, unless the amount is small or a court appoints a guardian of property. A will can avoid that by holding the money in a trust until an age you choose.

Your two powers of attorney

Ontario generally uses two kinds of power of attorney, both made under the Substitute Decisions Act, 1992:

• A continuing power of attorney for property, which covers money, investments, bills, taxes and real estate. Section 7(2) lets it authorize your attorney to do anything with your property that you could do yourself, except make a will.
• A power of attorney for personal care, which covers health care, housing and other personal decisions such as meals and clothing. It only operates for decisions you are incapable of making.

Without them, a relative may have to apply to the court or to the Office of the Public Guardian and Trustee before acting for you. The difference between the two is worth a few minutes of reading. Our question pages go further on the continuing power of attorney for property. They also cover the power of attorney for personal care.

How we prepare them, step by step

1. A 30-minute consultation, by video or in person, about your family, what you own and what you want to happen.
2. A clear plan and quote before any drafting begins.
3. Drafts reviewed with you, in plain language, so each clause says what you mean.
4. A signing meeting with two independent witnesses, at our Richmond Hill office or by video. Ontario allows wills and powers of attorney to be witnessed by video when one witness is a lawyer or paralegal licensed by the Law Society of Ontario; the conditions are in can you sign a will by video in Ontario.
5. Keeping the originals safe, and telling the people you have named where they are.

Choosing the people you name

Each document asks you to choose someone, and the right person for one job is not always right for the others. Your estate trustee settles your estate after you die; Ontario’s guidance suggests weighing each candidate’s age, time, ability to manage money and location, and notes that an estate trustee living outside Ontario might have to post a bond when applying for probate. Your attorney for property manages your money while you are alive, possibly for years, so being organized and nearby matters. Your attorney for personal care makes health and housing decisions, so they should know your wishes and be willing to speak up for them with doctors and care homes.

You can name the same person for all three roles, or different people. Under the Substitute Decisions Act, 1992, two attorneys named together must act jointly unless the document says otherwise, so think about whether you want them to be able to act separately. A paid caregiver cannot act as your attorney for personal care unless they are your spouse, partner or relative. For each role, name a backup, and talk to the people you choose before you sign, so nobody learns about the job for the first time in a crisis.

Older wills deserve a second look

Since January 2022, getting married in Ontario no longer cancels an existing will, and in some cases a spouse you have separated from is treated as if they died before you for gifts in your will. A will made years ago may not say what you want today. We explain the first change in does getting married cancel your will in Ontario. The second is covered in what happens to your will if you separate.

It is also worth reviewing your will after a birth, a death, a move, buying or selling a business, or a big change in what you own. Powers of attorney need the same attention: separation, for example, does not end a power of attorney that names your spouse.

What changes the right plan

• A business. Your attorney may need authority over your shares, and your will may need a secondary will for them. Your shareholders’ agreement should say the same thing.
• A blended family. Ontario’s intestacy rules, and a simple “everything to my spouse” will, can leave children from an earlier relationship with nothing.
• A common-law partner. A common-law partner does not inherit under the intestacy rules, so a will is the clearest way to make sure they are provided for. See who inherits if you die without a will.
• Young children. A guardian, and a trust for their inheritance, both belong in the will.
• A family member on disability support. An outright inheritance can affect benefits, which is why some families use a trust.
• Property outside Ontario. Land elsewhere is governed by the law of the place where it is, so the plan has to account for it.

Common mistakes

• Making a will and forgetting both powers of attorney.
• Using a beneficiary, a spouse or a child as a witness.
• Naming two attorneys without saying whether they can act separately.
• Leaving a will untouched after marriage, separation or a new business.
• Keeping the originals where nobody can find them.

What to do this week

1. Find any will or power of attorney you have signed, and check the date and the witnesses.
2. Write down who you would name as estate trustee, guardian, attorney for property and attorney for personal care, with a backup for each.
3. Make a rough list of what you own, including any company shares and property outside Ontario.
4. Note any registered plans or insurance that name a beneficiary.
5. See the full list of what to bring to a consultation.
6. Request a consultation: 30 minutes, by video or in person.

Frequently asked questions

Sources

• Succession Law Reform Act, R.S.O. 1990, c. S.26
• Substitute Decisions Act, 1992, S.O. 1992, c. 30
• Health Care Consent Act, 1996, s. 20
• Ontario.ca: Make a power of attorney
• Ontario.ca: Estate planning and wills
• Ontario.ca: Guardianship of a child’s money and property

Questions clients ask about wills and powers of attorney

Each of these answers one question in more depth, with the Ontario law behind it.

Wills

• What makes a will valid in Ontario? The writing, signature, witness, age and capacity rules, and the exceptions.
• Do you need a lawyer to make a will in Ontario? What the law requires, how the three routes compare, and when the risk rises.
• Can you sign a will by video in Ontario? When video witnessing is allowed, who must be on the call, and how signed copies work.
• Is a handwritten will valid in Ontario? When a will in your own handwriting counts, and why a filled-in kit does not.
• Does getting married cancel your will in Ontario? The 2022 change, what it means for older wills, and a new spouse’s rights.
• What happens to your will if you separate in Ontario? When a separated spouse loses gifts under your will, and what separation does not change.
• Who inherits if you die without a will in Ontario? The order Ontario law follows, the spouse’s preferential share, and who is left out.
• How do you name a guardian for your children in an Ontario will? What a will can and cannot decide about who raises your children and manages their money.
• How do you choose an estate trustee for your Ontario will? Who to name as estate trustee, why to name an alternate, and what living outside Ontario changes.
• Should couples in Ontario make mirror wills? How matching wills for couples work, what they cannot do, and when a couple needs something different.

Powers of attorney and incapacity

• What is a continuing power of attorney for property in Ontario? What the document lets your attorney do, how to sign it validly, and the duties that come with it.
• What is a power of attorney for personal care in Ontario? Who decides about your health and housing if you cannot, when it applies, and how to record your wishes.
• What happens if you lose capacity without a power of attorney in Ontario? Statutory guardianship, court guardians and who makes health decisions when there is no power of attorney.

This page is general information about Ontario law, not legal advice for your situation.