What is a power of attorney?
Power of Attorney is the authorisation given by one person (the donor) to another (the attorney) to act on their behalf in private affairs, business or legal matters. The granting of the power of attorney usually gives the attorney the ability to grant traditional legal powers plus additional powers as set out in the deed of grant that contains a power of attorney.
Power of attorney is a fundamental component of modern society because it allows people to quickly and efficiently delegate important responsibilities and decisions to trusted individuals. It provides peace of mind that if the need arises, trusted advisors can make decisions without the donor’s input. In addition, a power of attorney can be tailored to take effect immediately or on a particular date or event such as incapacity of the donor.
Types of power of attorney can include (but are not limited to):
A General Power of Attorney
A general power of attorney gives the solicitor and/or the donor’s other trusted individuals the authority to do anything an individual can lawfully do while mentally competent, unless limited by the terms of the power. This type of power does not remain in effect if the donor loses mental capacity.
An Enduring Power of Attorney
An enduring power of attorney operates within the confines of a general power of attorney, but continues to operate even if the donor loses mental capacity. However, the power does not extend to the making of a will on behalf of the donor , whereby a separate will must be prepared for the donor should they wish (e.g. if an enduring power is required because of mental incapacity). A power of attorney ceases on the death of the donor or attorney.
An Enduring Power of Attorney for Health & Lifestyle
An enduring power of attorney for health and lifestyle provides the attorney with the authority to make health and lifestyle decisions on behalf of the donor when the donor loses mental capacity. Decisions cannot be made contrary to the wishes of the donor.
A Registered Enduring Power of Attorney
A registered enduring power of attorney is a document that must be signed by the donor and the two witnesses. The document needs to be lodged with the relevant state or territory’s authority for it to be effective. In Queensland the relevant authority is the Office of the Public Advocate. The power of attorney may take effect on registration or at an earlier time specified in the document.
A General Power of Attorney for Health & Lifestyle
A general power of attorney for health and lifestyle provides the attorney with the authority to make lifestyle decisions on behalf of the donor when the donor loses mental capacity. Decisions cannot be made contrary to the wishes of the donor. Like the enduring power of attorney, the power of attorney for health and lifestyle continues to operate after the donor becomes mentally incapacitated. The power of attorney for health and lifestyle does not take effect unless registered by the donor.
A Power of Attorney for Finances
A financial power of attorney allows an attorney to conduct financial affairs on the donor’s behalf. The grant of a financial power of attorney ceases upon the donor’s death.
Importance of legal aid in securing a power of attorney
Legal aid is one way a person with limited means can obtain legal help. In the context of obtaining a power of attorney, services offered by legal aid can cover substantial legal costs that may be associated with setting up a will or determining whether obtaining a power of attorney is beneficial. Legal aide can assist with a power of attorney process by providing free legal consultation, and in some situations, helping in the process of acquiring a power of attorney. There are times when legal aid will also help with locating a notary public, drafting letters, and finding information. When a person is specifically seeking to obtain a power of attorney, it is recommended to contact legal aid first to determine whether or not they qualify for aid from the government. There are requirements that should be met to qualify for legal aid, though in general, it is intended for people who cannot afford it. For an individual to qualify, they must either be receiving certain benefits provided by the government or have a total income that is below the guidelines set for eligibility. Legal aid helps low-income individuals, as well as children under the age of 18.
Eligibility for legal aid support
Eligibility criteria for legal aid
The eligibility criteria to qualify for assistance with a power of attorney application for those normally entitled to legal aid in accordance with the statutory charge regime (section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) are described below.
A legal aid applicant qualifies for assistance with making an application for a power of attorney if he or she is eligible both as raised below (Regulation 3 of the Civil Legal Aid (Eligibility Criteria) Regulations 2013).
Eligibility for legal aid is established if the applicant is likely to qualify for legal aid under the relevant means and merits tests for the type of case involved in the application (Regulation 3(2), the "relevant tests").
Eligibility for reduction of charges for legal aid
The applicant is entitled to an increase in the maximum reduction to the legal aid charge under section 12(c)(ii) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the "LASPO 2012 charge") if he or she qualifies under a relevant test, and the value of the transferred property is likely to be reducible under the relevant test for chargeability.
To establish the above, the applicant must identify the amount of the benefit in the transferred property (Regulation 5).
Financial limits
The applicant qualifies if they are:
Fees charged to the applicant
In the circumstances described above, fees charged to the applicant for assistance with an application for a power of attorney will not exceed the following limits:
Where the applicant will be charged under a reduced fee regime, but the nature and complexity of the case in question do not support the charging of the charge we mentioned, the charge shall be reduced accordingly, within the limits set out above (Regulation 6).
Cash limit on cost of work
The amount of work on behalf of each relevant type of application that can be undertaken is subject to the following limits (Regulation 7):
How to apply for legal aid
The process for applying for legal aid for a power of attorney is fairly straightforward, albeit with some specific criteria and rules. You can only apply for legal aid if:
You are at least 18 years of age or you can prove that you have the ability to make this application.
You live in Ontario and your legal aid matter is in Ontario.
You need help with a legal issue that legal aid covers.
You meet local income guidelines.
You pass the legal aid financial test.
You can show that you qualify for legal aid in a way that will assist you with your legal matters.
You are not financially responsible for someone who is in jail or prison.
Legal aid covers a wide variety of matters, including family law, criminal law, environmental law, transportation law, bankruptcy law, mediation, worker’s rights, discrimination, mental health law, veterans’ rights law, or a range of legal issues related to immigration and refugee matters.
Once you have determined that your matter qualifies for legal aid, you can apply online through the Legal Aid Ontario (LAO) system. Alternatively, you can call LAO at 416-979-9934 with your application information.
The online legal aid application is a fairly basic process that asks you questions along the lines of:
Give contact information, including home address, phone number, and email.
Provide reasons for the application.
Provide details of your legal issue.
Provide current income information including spouse income information.
Provide information about current status in relationship to income when a spouse earns more than the legal aid income limit.
Answer gateway questions for legal eligibility.
If you cannot apply online or do not feel comfortable providing your personal information, you can go to a local Legal Aid Ontario office in person or by phone to apply for a certificate.
LAO also provides resources for people living with disabilities so that they may apply for legal aid online. If you are living with a disability or you are a legal aid partner, you can access resources or help at www.legalaid.on.ca/. You may also apply for legal aid assistance from terminus offices that assist a variety of clients with disbursed locations to help with these applications. For more information on the application process, you can also visit the LAO website at www.legalaid.on.ca/en/getting-legal-aid/.
Obstacles and how to overcome them
Legal aid is not available for powers of attorney, but in certain circumstances, legal aid is available to review a power of attorney for property or a power of attorney for personal care. There are eligibility requirements outlined by the Public Law Centre and benefits that are limited to prisoners and former prisoners.
The unfortunate reality for most Ontarians who wish to prepare a power of attorney or obtain a divorce in Ontario is that they will not qualify for legal aid. Legal Aid Ontario only provides legal assistance to individuals with the very lowest income and who cannot afford a lawyer. If you require a power of attorney or legal advice about a power of attorney there are some other solutions.
Alternatively you can seek out assistance from other sources such as the Mentor Student Law Society (MSLS). The MSLS is at the forefront of providing pro bono legal services to legal clinic clients and seniors. The MSLS offers free legal services to seniors:
That being said, if you require assistance with signing or executing your property power of attorney, you should approach a lawyer who is well versed with the management and passing of property power of attorneys such as an estate and trust lawyer who regularly manages incapacity and similar matters.
When you have concerns about an existing power of attorney for property, there are several options. For example, if you truly believe that the attorney for property is abusing the donor’s trust and capacity, such concerns must be immediately addressed by contacting the Office of the Public Guardian and Trustee (OPGT) to become an ‘interested person’. An interested person can request the OPGT to investigate the situation and/or review the information contained in the power of attorney . The OPGT can contact the attorney for property to get a more detailed report on the accounts and can review financial documents before deciding whether a court order may be necessary. The OPGT does have an investigations division and a litigation division to step in handle difficult matters but the OPGT is currently underfunded and faces chronic resource limitations.
The Variation or Termination of Power of Attorneys Act determines when a power of attorney for property can be changed. A "related diverting grant" or "variation" is when a judge replaces the existing power of attorney with a new power of attorney. A "termination" is when the controls on the power of attorney are lifted and the authority of the attorney for property terminates. If a court terminates a power of attorney for property it does not mean that the power of attorney for personal care is terminated.
An application must be made to the court to create a variation in place of the attorney for property and the courts have the discretion to refuse to aid the application. For example, the court will not assist an individual who sues because he or she has lost money rather than monetary concerns. The court can terminate a grant or limited grant when the attorney is no longer the best person to handle the property of the donor.
The courts can also declare a power of attorney, in whole or in part, a nullity if the requirements of the Substitute Decisions Act for creating the grant were not met or if the court believes that the donor lacked the physical capacity to create the grant at the time the original power of attorney was made.
Locating legal aid service providers
In terms of finding appropriate legal aid lawyers and agencies that cater for power of attorney cases, the internet proves to be a great help at any instance. The Canadian Bar Association can do well to assist you in more than one way. First, the page that belongs to your province can prove a helpful resource, as there are many listings of legal service providers throughout Canada. The Legal Aid Society can point you to even more helpful resources. Every province and territory in Canada has its own legal aid society. You can contact the appropriate society and inquire about local resources. The competent body will then offer you information on:
Another good resource for people looking for legal aid lawyers is the Canadian Legal Information Centre. This organization offers a thorough list of resources for people searching for legal aid assistance. Another point that bears mentioning is that most of the information found on the website has been translated into French for the benefit of the French speaking population. In essence, the website is a good useful resource that can save you time and money.
Final advice to keep in mind:
The person that finds themselves in a position requiring power of attorney legal aid can take a big burden off their shoulders by simply requesting this help. It is the best way to find an adequately legal aid lawyer that will be able to assist them in their case without too much ado.
Common inquiries
Q: Do I have to pay to set up legal aid for power of attorney?
A: It is free to set up legal aid for power of attorney. If you have a creditor’s consent, you never have to pay. But if you don’t have a creditor’s consent, you can pay a fee. Obtaining a lawyer’s help to set up legal aid for power of attorney may involve some fees.
Q: I have a limited income, will I qualify for legal aid?
A: The test for legal aid is satisfaction of an asset test and an income test. In addition to satisfying both tests, you need to meet the requirement for the type of legal aid you are seeking. To qualify for Legal Aid SA-funded assistance for a power of attorney, you will need to meet the general financial guidelines required for all areas of practice. This means that you need to have no more than $3,800 in cash (including savings, cheques and cash in transit), shares, life insurance policies, bonds, debentures, term deposits or managed investments. In addition, you need to have a fortnightly income before tax lower than this amount: If you are a person whose assets and income are greater than those amounts , you may still qualify for legal aid if you can show special circumstances exist.
Q: Can anybody apply for legal aid to set up a power of attorney?
A: Yes, however legal aid will be given to those people who cannot afford to pay for legal advice or representation from their disposable income. Noting the following asset test and income test eligibility thresholds: If you are a person whose assets and income are greater than those amounts, you may still qualify for legal aid if you can show special circumstances exist.
Q: What if I’m overseas or in isolated regional Australia? Will I be able to apply for legal aid for a power of attorney?
A: If the power of attorney application is for an AVO or bail, you may contact a Legal Aid hotline (131 452 in NSW) for assistance if it is difficult to locate the person you need to help or where the person is in a remote or isolated region.
Q: Why would I need a power of attorney and legal aid to help me with it?
A: It is important to understand the nature and effect of a power of attorney by reading the legal aid online information about powers of attorney. You may need legal advice to explain any parts of this information that you do not understand, or how the laws may apply to you.