What a Notary Witnesses on an Ontario Power of Attorney

An Ontario power of attorney is not made effective by a notary's stamp. It is made effective by two witnesses. The Substitute Decisions Act, 1992 says so twice — once for property and once for personal care — and it also names five categories of people who are barred from being one of those witnesses. That list is where most of the trouble starts, because the people closest to the person signing are usually the ones sitting in the room.

Two witnesses, not a notary

Section 10 (1) of the Act is one sentence: 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". Section 48 (1) repeats it word for word for a power of attorney for personal care.

Neither section mentions a notary public, a lawyer, or a seal. Neither prescribes a form either: a continuing power of attorney "need not be in any particular form" (s. 7 (7.1)), and the same is said of the personal care document (s. 46 (8)). The provincial guidance adds the point that surprises people most often — the person being appointed does not have to be a lawyer at all.

What happens when the witnessing is wrong is set out in the same sections. A power of attorney that does not comply with the witness requirements is not effective, and the route back is an application to the court, which may declare it effective if satisfied that doing so is in the interests of the grantor or the grantor's dependants (ss. 10 (4) and 48 (4)). That is a court application to repair a signature block, and it is usually discovered years later by a bank.

A notary is still the officer most families bring the document to, and the power of attorney page covers that side of the work. What a notary public may do is listed in the Notaries Act: witness or certify, and attest, the execution of a document; certify and attest a true copy of a document; and exercise the powers of a commissioner for taking affidavits. Witnessing an execution is on that list. Nothing in sections 10 or 48 makes a notarial certificate an alternative to the two witness signatures, so the stamp is added to the witnessing rather than in place of it.

The five people who cannot witness it

Section 10 (2) disqualifies:

1. the attorney, or the attorney's spouse or partner;
2. the grantor's spouse or partner;
3. a child of the grantor, or a person whom the grantor has demonstrated a settled intention to treat as his or her child;
4. a person whose property is under guardianship, or who has a guardian of the person;
5. a person who is less than eighteen years old.

Section 48 (2) applies that same list to a power of attorney for personal care, so one list governs both documents.

Read together, the effect is that the household is disqualified. The spouse cannot witness. The adult children cannot witness. The person being appointed cannot witness, and neither can their spouse. A family that sits down at the kitchen table to sign has, between them, almost nobody eligible — which is the ordinary reason the witnesses end up being two people the family does not know.

Two separate people are needed, and one officer cannot supply both signatures. That is worth knowing before an appointment rather than at it.

Property and personal care are two different documents

They are often signed on the same afternoon and are frequently spoken of as one thing. The Act treats them separately, in two different Parts, with different ages and different triggers.

	Property	Personal care
What the attorney decides	Financial affairs: paying bills, collecting money owed, maintaining or selling a house, managing investments	Health care, housing, and other aspects of personal life such as meals and clothing
Minimum age to give one	18	16
Witnesses required	Two, s. 10 (1)	Two, s. 48 (1)
Who is disqualified	s. 10 (2)	s. 10 (2), applied by s. 48 (2)
When the authority starts	Immediately, unless the document states otherwise	Under the conditions in s. 49, which turn on the Health Care Consent Act, 1996 and on incapacity

The property side carries a distinction that the word "continuing" is doing all the work for. A power of attorney for property is a continuing power of attorney only if it says that it is one, or expresses the intention that the authority may be exercised during the grantor's incapacity to manage property (s. 7 (1)). The authority it grants is broad — anything in respect of property that the grantor could do if capable, with one exception written into the Act: the attorney cannot make a will (s. 7 (2)).

The personal care document has a restriction of its own. A person who is paid to provide health care to the grantor, or paid to provide residential, social, training or support services, may not act as attorney for personal care unless that person is the grantor's spouse, partner or relative (s. 46 (3)).

What actually happens at the desk

The witnessing itself is short, and it is the same act as any other witnessed signature. The document arrives complete and unsigned. Each person is identified from current government-issued photo identification. The execution takes place in the presence of both witnesses, and each of them signs the document as witness. What to bring to a notary appointment covers the identification side in more detail and applies here without change.

Three things cause a trip to be repeated, and all three are avoidable before anyone leaves the house:

• The page was signed the night before. A signature already on the paper cannot be witnessed after the event, so it is signed again.
• The document is incomplete. A blank date, an unnamed substitute attorney, a condition left half-written — what is witnessed is the document as it stands at that moment.
• The second witness is disqualified. The daughter who drove everyone there, and the spouse, are both on the section 10 (2) list.

There is a further point that only comes up with property documents. The Ontario land registration system does not accept powers of attorney that contain personal information — copies of or details from government identification, bank accounts, passports or birth certificates. A document drafted with an identification number written into it can be witnessed perfectly and still be unusable for its intended purpose.

Signing over video needs a Law Society licensee

Section 3.1 of the Act permits the witnessing requirement to be satisfied through audio-visual communication technology, but attaches conditions. At least one person acting as a witness must be a licensee within the meaning of the Law Society Act at the time; the signatures required by the Act must be contemporaneously made; and any prescribed requirements must be met. Signatures may be made on complete, identical copies signed in counterpart, which together constitute the power of attorney.

The licensee condition is the one that decides where remote signing can happen. A notary public who is not a Law Society licensee cannot be that witness, which means remote execution of an Ontario power of attorney is not something a non-lawyer notary office can complete. In-person witnessing carries no such condition. The same section applies, with necessary modifications, to revoking a power of attorney.

What the witnessing does not settle

A witness confirms that a named person, identified at the desk, executed the document in their presence. Several questions sit outside that, and they are the questions that decide what the document is worth later.

• Capacity. The Act sets out what it means to be capable of giving each document — s. 8 (1) for property, s. 47 (1) for personal care. A witness is not an assessor, and a signature block records no finding about capacity.
• When it comes into effect. Where a continuing power of attorney is to come into effect on incapacity but names no method for determining that, s. 9 (3) supplies one: notice to the attorney in the prescribed form from an assessor, or notice that a certificate of incapacity has been issued under the Mental Health Act.
• Whether it is still alive. A continuing power of attorney terminates in the circumstances listed in s. 12 (1), among them the attorney's death, incapacity or resignation, the court's appointment of a guardian of property, the execution of a new continuing power of attorney, revocation, and the grantor's death.
• Revocation. A revocation must be in writing and executed the same way as a continuing power of attorney (s. 12 (2)) — which means two eligible witnesses again, not a note in a drawer.
• What the drafting achieves. Drafting a document and witnessing its execution are two different jobs. The provincial guidance points readers with complicated affairs, business ownership, property in another jurisdiction or a difficult family situation to a lawyer, and offers a free kit for a straightforward document.

Where the document is written, complete and unsigned, and eligible witnesses are available, the remaining part is short. Certified true copies of an executed power of attorney are a separate errand, usually for an institution that would rather not hold the original, and booking a time is the straightforward end of all of this.