Foreign Powers of Attorney for Care

May 11, 2016 Suzana Popovic-Montag Power of Attorney Tags: , , , , , , 0 Comments

In 2016, it is no longer out of the ordinary for Canadians to call more than one province home. It has also become more common for Canadians to move among different provinces throughout their lives. Either way, it is important to consider the implications of the validity of a power of attorney for personal care that was granted in one province and whether it will be recognized in another.

For those who have executed a power of attorney for personal care outside of Ontario, the Substitute Decisions Act provides at section 85 (1),

As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,

(a) the power of attorney was executed;

(b) the grantor was then domiciled; or

(c) the grantor then had his or her habitual residence. 

However, for those who have executed a power of attorney for personal care within Ontario and the attorney is now seeking to use it in another province, the rules as to its validity will vary.

For instance, in Quebec, the1XBAS04FMB Civil Code governs the rules surrounding protection mandates (the equivalent of a power of attorney for personal care). The most significant distinction in this regime is that a mandate given in anticipation of incapacity is conditional upon “the homologation of the mandate” (i.e. the court procedure confirming the validity of the mandate).

A mandatary (attorney) has no authority to act until this step has been completed. Therefore, any acts performed by the mandatary prior to the homologation of the mandate may be annulled. This measure is seen as a protective tool to help circumvent potential power of attorney abuse.

Thank you for reading.

Suzana Popovic-Montag

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