Foreign Powers of Attorney for Property
Powers of attorney for property are generally accepted in most Common Law jurisdictions and many Civil Law jurisdictions, which is important given that many have family members and assets in various parts of the world. Subsection 85(1) of the Substitute Decisions Act provides that the foreign grant is valid if at the time of execution it complied with the internal law of the place where it was executed, where the donor was domiciled or where the grantor had his or her habitual residence.
When multiple jurisdictions are involved, it may be helpful to have a power of attorney prepared in accordance with the rules of the jurisdiction where land is located, so that the forms the regulatory and registration bodies are familiar with are in use. However, take care to ensure that the document contains language specifically preventing revocation. Otherwise a new power of attorney, albeit in a foreign jurisdiction, will effectively revoke any earlier power of attorney granted in Ontario (subsection 12(1)(d) of the SDA). Conversely, a later grant under the SDA will serve to revoke all foreign grants (although section 12 of the SDA would be of no effect when presented in a jurisdiction that does not recognize such powers).
Here is some noteworthy information regarding the recognition of an Ontario power of attorney for property in other provinces:
· it will be valid in Saskatchewan and Manitoba as long as it is valid according to the laws of Ontario, and continues despite the mental incompetence of the donor;
· it will be valid as a springing or enduring power of attorney in Nunavut if it is valid according to the laws of Ontario, and it provides the appropriate statement as to its commencement or continuation;
· it will be recognized in Quebec, but will be subject to approval and will receive the scrutiny of the courts; and
· the legislation in all other provinces currently seem to be silent regarding the application of foreign powers, such that if a grantor has property in any of these provinces one should confer and/or retain local counsel to assist.
Have a good day,
Natalia R. Angelini - Click here for more information on Natalia Angelini.
