Introduction
An attorney for property is typically afforded broad discretion to manage the property of the appointing donor, subject to any conditions or restrictions imposed by the legislation, the common law, or the terms of the power of attorney document itself.
In Ontario, a key restriction on the authority of an attorney for property is found in the Substitute Decisions Act, RSO 1992, c 30, which states at subsection 7(2):
The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will (emphasis added).
As an aid to interpretation, we turn to the Succession Law Reform Act, RSO 1990, c S-26, which defines the term “will” at subsection 1(1):
(a) a testament,
(b) a codicil,
(c) an appointment by will or by writing in the nature of a will in exercise of a power, and
(d) any other testamentary disposition (emphasis added).
As we can see, the authority granted an attorney for property is not unlimited and, in this vein, an exploration of the meaning of “testamentary disposition” is merited.