Power of Attorney vs. Executor: What Is the Difference in Ontario?
Wills & POA ·
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These two roles are often mixed up, and the mix-up can leave a family without anyone able to act at a critical moment. The short version: a power of attorney is for when you are alive but unable to manage your affairs, and an executor is for after you die.
Power of attorney: acts for you while you are alive
A power of attorney is a legal document in which you name someone, the attorney, to make decisions for you. Ontario has two kinds under the Substitute Decisions Act, 1992:
- Continuing power of attorney for property. Covers your finances and property: paying bills, banking, managing investments and dealing with your home. It is "continuing" if it says so, or if it states that it can still be used if you become incapable of managing property.
- Power of attorney for personal care. Covers personal care decisions such as health care, housing and food. Under section 49, it takes effect when the attorney has reasonable grounds to believe you cannot make the decision yourself, subject to any condition you put in the document.
A continuing power of attorney for property can be used right away unless the document says it starts later, for example when you become incapable. Section 7 allows it to start on a specified date or when a specified event happens. Our page on powers of attorney explains the choices.
Executor: acts after you die
An executor is the person named in your will to carry out its instructions. Ontario law uses the term estate trustee. The role starts when you die. The executor gathers your assets, pays debts and taxes, and distributes what is left to your beneficiaries. Some estates need a court document called a certificate of appointment of estate trustee before institutions will release assets. Our guide on choosing an executor and the named executor checklist cover this in more detail.
Side by side
| Power of attorney | Executor (estate trustee) | |
|---|---|---|
| Acts for you | While you are alive | After you die |
| Named in | A power of attorney document | Your will |
| Main job | Manage your property or personal care | Settle your estate and distribute assets |
| Ends when | You die, or it is revoked or terminated | The estate is fully administered |
The handover moment
Section 12 of the Substitute Decisions Act, 1992 says a continuing power of attorney is terminated when the grantor dies. The attorney's authority does not carry on after death. At that point only the executor can act for the estate. Someone who keeps using a power of attorney after the person has died can create serious problems, so tell banks and other institutions promptly.
Limits of a power of attorney
- It cannot be used to make a will for you. Section 7(2) excludes making a will from what an attorney can do.
- The attorney for property must account for their dealings and manage your property prudently.
- An attorney for property must be at least 18, and an attorney for personal care must be at least 16.
- If you have more than one attorney, they must act jointly unless the document says otherwise.
Signing requirements
A continuing power of attorney and a power of attorney for personal care must each be signed in the presence of two witnesses. Certain people cannot be witnesses, including the attorney or the attorney's spouse or partner, your spouse or partner, your child, and anyone under 18. A document that does not follow these rules is not effective unless a court declares it effective. Under section 3.1 of the Act, witnessing can also be done by video if at least one witness is a licensed lawyer or paralegal and the signatures are made at the same time. See our guide to signing a will and powers of attorney by video.
Who should you choose?
The same trusted person can serve as both attorney and executor, but you do not have to pick the same person. Think about who is organized, honest, close by and willing to take on paperwork. Name a backup for each role. Talk to the person first so they are not surprised. See our guide on what a will and powers of attorney cost.
Talk to us
We prepare wills, Islamic wills and both powers of attorney in English, Urdu, Hindi and Punjabi. See our wills and powers of attorney page, download the free checklist, or call (289) 652-0529.
DISCLAIMER: This article is general information about Ontario and federal law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.
Frequently Asked Questions
Is a power of attorney the same as an executor?
No. A power of attorney acts for you while you are alive. An executor, called an estate trustee in Ontario, acts under your will after you die.
Does a power of attorney continue after death?
No. Under Ontario's Substitute Decisions Act, 1992, a continuing power of attorney ends when the person who gave it dies. From then on, the executor named in the will deals with the estate.
Can the same person be my attorney and my executor?
Yes. Many people choose the same trusted person, but they do not have to. Some choose different people for each role, for example one for money and one for care.
Can my attorney change my will?
No. A continuing power of attorney for property can do most things you could do with your property, but it cannot make a will for you.
Do I need two powers of attorney?
Ontario has two kinds. One covers property and finances. The other covers personal care, such as health care and where you live. Most people sign both along with their will.