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Where in the world should I prepare my powers of attorney?

Imagine that your aging mother, who normally resides in Ontario, decides to purchase a new home in California, where you also happen to live.

Your mom has previously taken steps to prepare a continuing power of attorney for property (in Ontario) in which your sister is named as attorney (the “Ontario POA“) because you reside in California and it’s easier for your sister to help your Mom deal with her property in Ontario.

For several years, your mom winters in California, but ultimately concludes that it is too physically demanding for her to be a snowbird and she elects to move to California full time instead.

Unfortunately, she suffers a stroke while in California and is no longer able to live in her California home.  She also no longer has the capacity to manage her financial affairs.  Your sister wants to sell the California home immediately so that there are funds available for Mom’s care.  You disagree, because it would be more prudent to rent out the house and sell it later when the market is hotter.

Your sister wants to rely upon the Ontario POA to demonstrate to you that she has the final decision making power on this issue.  But is she right?

The answer is not so straightforward.  There is no simple, universal law that enables a party who is named as attorney for property in one jurisdiction to simply act in the same capacity in a separate jurisdiction.

For example, if your sister attempted to seek a declaration that the Ontario POA should be applied in California, you might well argue that it was implied that the powers would only be exercised in the jurisdiction in which the document was executed – i.e. Ontario. Alternatively, in Ontario, for example, it is well-settled law that the state where an immoveable (i.e. land or an interest in land) is situated has exclusive jurisdiction over the thing1.  A similar argument could potentially arise in California.

This issue can become even more complicated if your Mom prepared multiple powers of attorney.  For example, what if we change the fact scenario above slightly?

Now let’s say that you and Mom are based in Florida rather than California.  Unlike California, Florida does in fact have legislation which, if it can be shown that a “foreign” power of attorney was executed in compliance with Florida law, then the Ontario POA may be relied upon.2

But what if Mom later created a new power of attorney document in Florida in which you and your sister are named as co-attorneys (the “Florida POA“)?

The Florida POA includes fairly standard, boilerplate language that all previous powers of attorney are revoked.

Now it turns out that your sister also wants to sell some of Mom’s property in Ontario, relying upon the Ontario POA.  Again, you don’t agree with her plans.

Is there anything that you can do?  The answer is, quite likely, “yes”.

In Ontario, section 12(d) of the Substitute Decisions Act, S.O. 1992, c. 30 (the “SDA“) states that a continuing power of attorney is terminated “when the grantor executes a new continuing power of attorney, unless the grantor provides that there shall be multiple continuing powers of attorney”.

But does the Florida POA meet the Ontario definition of a “continuing power of attorney”, or are both documents effective in their respective jurisdictions in which they have been executed?

The SDA does have some conflict of laws provisions that provide some guidance on this question:

Specifically, section 85 of the SDA states as follows:

Conflict of laws, formalities

85 (1) As regards the manner and formalities of executing a continuing power of attorney or power of attorney for personal care, the power of attorney is valid if at the time of its execution it complied with the internal law of the place where,

(a) the power of attorney was executed;
(b) the grantor was then domiciled; or
(c) the grantor then had his or her habitual residence.  1992, c. 30, s. 85 (1).

“Internal law”

(2) For the purpose of subsection (1), “internal law”, in relation to any place, excludes the choice of law rules of that place.  1992, c. 30, s. 85 (2).

Revocation

(3) Subsections (1) and (2) apply with necessary modifications to the revocation of a continuing power of attorney or power of attorney for personal care.  1992, c. 30, s. 85 (3).

In other words, these provisions (and subsection 85(3) in particular) may enable you to establish that because the Florida POA stated that all previous powers of attorney were revoked (without indicating that the Ontario document should remain operable), then Ontario law would suggest that on the facts of this case,  as long as the Florida POA was properly executed in compliance with Florida law, the Ontario POA may well be deemed revoked and no longer in force.

Similarly, section 85(1) would suggest that the Florida POA may now be binding in Ontario pursuant to Ontario law.

By bringing an application in the Ontario courts to address this issue, provided you are able to establish that the Florida POA was executed in compliance with Florida law, the court may well determine that the Florida POA must be recognized in Ontario and accordingly, your sister is now bound to jointly determine what comes next for Mom’s Ontario (and Florida) properties with you.3

While initiatives by lawmakers are being pursued to harmonize laws addressing the enforceability of capacity-related documents worldwide, this has not yet been finalized.  Therefore, when issues regarding the enforceability of POAs arise, consultation with a litigation lawyer about what your options might be – potentially in coordination with a litigation lawyer in another jurisdiction – is recommended.

Footnotes
  1.   Page Estate v. Sachs 1990 CarswellOnt 482 at para. 12, aff’d 1993 CarswellOnt 560 (CA) and Duke v. Andler (1932) 4 D.L.R. 529 (SCC)
     
  2.   See, 2021, Florida Statutes, Chapter 709
     
  3.   Trying to seek this declaration in Florida, rather than Ontario, can create its own problems.  If such an order was made in Florida, your sister could potentially argue that the Florida order should not be enforced in Ontario, because Florida has no jurisdiction to adjudicate upon the title or right to possession of immovables situated in Ontario.  Not only must this issue be decided according to Ontario law, an argument could be made that the dispute has to be dealt with by the Ontario courts. (See Catania v. Giannattasio(1999), 174 D.L.R. (4th) 170 and Spagnola v. Romanelli 2021 ONSC 4236 (Sup. Ct.)
     

The author of this blog is Bradley Phillips. Bradley is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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