Are you a snowbird? Just like birds flying south for the winter, are you someone who spends a large portion of our Canadian winters in warmer climates? Generally, snowbirds in Canada retain their Canadian residency in order to hold on to their health care benefits, but take advantage of the opportunity to leave the country for extended periods of time.
When preparing to head south for an extended period, it is important to ensure your Canadian household is protected in your absence and that you know how long you can be out of the country without losing your Canadian residency status. Also, as you leave the country for extended periods of time, you should think about who you want to look after your financial affairs or your own personal care if you become unable to do so during your time away from home.
In Ontario, with a continuing power of attorney for property, you can ensure that someone who understands your financial goals will manage your property on your behalf. With a power of attorney for personal care, you can ensure you will receive the end of life medical care you want.
A power of attorney is a legal document that grants one or more individuals the authority to act on behalf of another person. Your Ontario powers of attorney are valid in Ontario, but if you are living in Florida for four months out of the year, for example, will your Ontario powers of attorney be valid in Florida?
Each Canadian province has provincial legislation that creates the power of attorney for property and for addressing a person's health-care directives. Although there are some similarities among the various provincial legislations that create powers of attorney, there are some significant differences. In Ontario, the creation of powers of attorney is governed by the Substitute Decisions Act, 1992. The basic criteria that must be met to create an effective power of attorney in Ontario are:
- Must be 18 years of age or more to create a power of attorney for property;
- Must be 16 years of age or more to create a power of attorney for personal care;
- Must be mentally capable of giving a continuing power of attorney for property;
- Must be in writing;
- Must be signed and dated; and
- Must be witness by two people who are not named as attorney.
Universally, the document that creates the power of attorney in any Canadian province or in Florida must be in writing, signed and dated by the maker. However, in Florida, a power of attorney for property must be acknowledged by the maker before a notary public.
To take into account the differences that exist in the creation of the power of attorney throughout the Canadian provinces and Florida, all Canadian provinces, except for New Brunswick, Newfoundland, Nova Scotia and Prince Edward Island have provisions in their governing legislation for recognizing a foreign power of attorney for property. All Canadian provinces except for New Brunswick and Newfoundland have provisions for recognizing a power of attorney for personal care. As a general rule, a foreign power of attorney will be recognized if it complies with the laws of the place where it was created and signed. Additionally in Ontario, a foreign power of attorney complies with the legislation of the place where the maker was domiciled or had their habitual residence. However, Florida's legislation provides a mechanism for recognizing both power of attorney for property and power of attorney for personal care, but only where the original document was executed in an American jurisdiction. Therefore, your Ontario power of attorney for property and your Ontario power of attorney for personal care will not automatically be recognized in Florida.
Although the various legislations may have a mechanism for recognizing foreign power of attorney, the institutions (i.e. banks, hospitals) may require a written legal opinion or court order recognizing the foreign power of attorney as valid before they accept it. Due to the additional time, expense and lack of certainty that may result in seeking a legal opinion or attempting to validate the powers in another jurisdiction, a more practical approach is to put in place a local power of attorney for property and for personal care in each jurisdiction where you have assets, in particular real estate, or where you will be spending significant time.
It is possible to make multiple powers of attorney, but you have to be careful that one does not by inadvertence revoke a pre-existing power of attorney that you want to preserve in another jurisdiction. This can be accomplished by specifically referring in each power of attorney to other pre-existing ones, and expressly confirming they are not to be revoked.
It should be noted that each jurisdiction can have different laws with regard to whether or not a power of attorney unless otherwise directed, automatically revokes any prior one or not. For example, in Ontario, subsection 12(1) and 53(1) of the Substitute Decisions Act, 1992 provides that a new power of attorney will revoke a previous unless the grantor provides there are to be multiple powers of attorney.
The bottom line
If you own property or spend extended periods of time outside of Ontario, then you should consider creating powers of attorney for property and personal care in the alternate jurisdictions.
Marcia A. Green is an associate lawyer with the Ottawa Law firm of Nelligan O'Brien Payne LLP (www.nelliganlaw.ca) and a member of the Wills and Estates Practice Group.
[This article originally appeared in the March/April 2015 edition of Fifty-Five-Plus Magazine.]