Statutory requirements for the virtual execution of Powers of Attorney (“POAs”) in Ontario have become significantly more flexible since 2020. Execution by video-conference and in counterparts was initially introduced as a temporary response to the COVID‑19 pandemic and has now been incorporated into the Substitute Decisions Act, 1992 as a permanent feature of Ontario law.
A recurring source of confusion for lawyers and clients alike in terms of POA execution is the distinction between what the law strictly requires and what practitioners may choose to do as a matter of best practice to reduce risk and future disputes.
Treating best practices as mandatory can create unnecessary barriers to access, while overlooking them altogether can expose a POA to avoidable challenges down the road. It is thus important to understand the distinction between legal requirements and best practices.
1. The Statutory Baseline
Under the Substitute Decisions Act, 1992, there are only two strict statutory requirements specific to the virtual execution of a Power of Attorney:
- Contemporaneous execution in counterpart
Two identical copies of the POA must be signed at the same time—one by the grantor and one by the witnesses—while all parties are present together by audio‑visual technology. A POA cannot be signed by the grantor at one virtual meeting and later couriered to the witnesses to be signed at a separate meeting. - A licensee witness
One of the two witnesses must be a licensee of the Law Society of Ontario.
If these two requirements are met, the POA satisfies the statutory conditions for virtual execution.
2. What the Law Does Not Require
Notably, the legislation does not require:
- An affidavit of execution;
- That both witnesses swear affidavits; or
- That the licensee witness be the one who swears the affidavit.
This is where practice and statute often diverge.
3. Why Best Practices Still Matter
Although affidavits of execution are not strictly required for POAs, they are frequently advisable. Properly sworn affidavits can:
- Create a clear evidentiary record that the statutory requirements were met;
- Reduce the risk of later challenges based on execution defects; and
- Assist third parties who may be asked to rely on the POA years after it was signed.
As a matter of best practice, many firms—including ours—recommend swearing at least one affidavit of execution following counterpart signing. Either witness may swear the affidavit, and if the non‑licensee witness is doing so, the licensee witness may also act as the commissioner.
Our Counterpart POA Execution Checklist goes further by suggesting affidavits from both witnesses. This is not because the law requires it, but because redundancy can be valuable when execution is scrutinized long after the fact.
4. Avoiding a Common Pitfall
A frequent error is assuming that every item on an execution checklist reflects a statutory obligation. In reality, many checklists deliberately blend mandatory requirements with risk‑management practices. Understanding which is which allows lawyers to exercise judgment, particularly in Legal Aid or access‑to‑justice contexts where flexibility matters.
5. Further Reading
For more information and resources in respect of counterpart execution and witnessing requirements, readers may wish to review this earlier post by Ian Hull and Jordan Atin:
“Witnessing Wills and POAs in Counterpart”.
Additional practical guidance is set out in our Counterpart POA Execution Checklists, which is intended as a tool—not a statement of minimum legal requirements.
Thanks for reading!
By Jordyn Sanford