It is well established that in order for a will to be valid in Ontario, strict compliance with the process of execution must be followed. For example, a formal will with only one witness will not be valid.
However, this is not necessarily the case with a power of attorney. A power of attorney can be declared valid by court even if the formal requirements of execution are not followed.
Section. 10(4) of the Substitute Decisions Act provides that:
A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.
(Subsection (1) provide that a continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. Subsection (2) itemizes who may NOT be witnesses.)
Thus, if a power of attorney only has one witness, or is witnessed by a prohibited witness, the court may still declare that it is effective.
Another basis for finding a power of attorney valid even if the Ontario requirements for execution are not strictly complied with is under s. 85 of the Substitute Decisions Act. This section provides that a continuing power of attorney for property or a power of attorney for personal care is valid if at that time of its execution it complied with the internal law of the place where the power of attorney was executed, or where the grantor was domiciled or where the grantor then had his or her habitual residence.
Another possibility is to consider the validity of the power of attorney under the Powers of Attorney Act. See Jim Jacuta’s blog in this issue, here.
Thus, even if the requirements of due execution are not complied with, all may not be lost.
Thank you for reading.