Can a Power of Attorney Sell a House in Ontario? What Families Need to Know

The short answer

This question often comes up when a parent has moved into care and the house in Markham is sitting empty. Can a power of attorney sell a house in Ontario? In most cases, yes. A continuing power of attorney for property can give the attorney authority to sell the home. Ontario’s own guidance lists “maintaining or selling your house” among the decisions an attorney for property can make.

The details matter, though. The authority comes from the document itself and from the Substitute Decisions Act, 1992. Both set limits. The attorney also takes on legal duties to the person whose home it is. If no power of attorney was ever signed or the person has died, the path is entirely different.

This post is general information, not legal advice. Before you list a home under a power of attorney, have a lawyer review the document and confirm that it covers the sale.

What a continuing power of attorney for property is

A power of attorney is a legal document that gives someone you trust the right to make financial or health care decisions for you. The one that matters for a house is the power of attorney for property.

Under section 7 of the Substitute Decisions Act, a power of attorney for property is a continuing power of attorney if it says so or if it expresses the intention that the attorney can act while the person is incapable of managing property. That word “continuing” is what lets the document keep working after the person loses capacity, which is usually exactly when a sale becomes necessary.

A few rules from the Act are worth knowing:

• The document can authorize the attorney to do anything in respect of property that the person could do if capable, except make a will.
• It is subject to any conditions and restrictions written into it, as long as they are consistent with the Act.
• If two or more attorneys are named, they act jointly unless the document says otherwise.
• It must be signed in the presence of two witnesses. The attorney, the attorney’s spouse or partner, the grantor’s spouse or partner and the grantor’s children are among the people who cannot act as witnesses.
• To make one, a person must be at least 18 and mentally capable of giving it.

When the attorney can sell the home

Timing depends on the wording. Ontario says that an attorney for property can start making decisions immediately unless the document states otherwise. Some people write their power of attorney so that it only takes effect on a specified date or when a specified event happens, most commonly when they become mentally incapable.

The Act describes incapacity for property in practical terms: a person is incapable of managing property if they cannot understand information relevant to a decision about their property or cannot appreciate the reasonably foreseeable consequences of a decision or of not deciding. If the document says it starts on incapacity but gives no method for confirming it, the Act sets out how that is determined. This is a question for the lawyer, not for the family or the agent.

Situation	Who can sign for the sale	Where the authority comes from
Owner is capable	Either the owner or an attorney whose document is already in effect	The owner or the power of attorney
Owner is incapable, continuing power of attorney exists	The attorney for property	The continuing power of attorney
Owner is incapable, no power of attorney	A statutory guardian or court appointed guardian	The Act, through the Public Guardian and Trustee or the court
Owner has died	The estate trustee	The will and the probate process

The attorney’s duties when selling

Selling a parent’s home is not the same as selling your own. Once the person is incapable or the attorney has reasonable grounds to believe they are, section 38 of the Act applies the guardian duties in section 32 to the attorney. In plain terms:

• The attorney is a fiduciary and must act diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.
• Where a decision affects the person’s personal comfort or well-being, the attorney has to consider that effect. A sale that funds care is a different decision from one that leaves the person without the things that matter to them.
• The attorney must explain their powers and duties to the person, encourage the person to take part in decisions as far as they are able and consult from time to time with supportive family and friends who are in regular contact.
• An unpaid attorney must use the care a person of ordinary prudence would use in their own affairs. A paid attorney is held to the standard of someone in the business of managing other people’s property.

There is also a rule that catches families by surprise. The Act says a guardian of property shall not dispose of property they know is the subject of a specific gift in the person’s will, subject to limited exceptions such as where selling it is necessary to meet the guardian’s duties. Section 38 applies this rule to attorneys too. If the will leaves the house to a particular person, raise this with the lawyer before anything else.

Keeping accounts

The Act requires accounts of all transactions involving the property. Ontario Regulation 100/96 sets out what those accounts include. For a house sale the relevant items are an ongoing list of assets disposed of, with the date, the reason and to whom, plus every amount received and paid out. The attorney must also keep a copy of the power of attorney with the accounts. A court can order the accounts to be passed, meaning reviewed, on application by the attorney, the grantor or certain other people. Keep the agreement of purchase and sale, the lawyer’s closing statement and the deposit record for the proceeds together from day one.

Selling a house without a power of attorney in Ontario

If no power of attorney was signed and the owner can no longer manage their property, Ontario is clear that family, including a spouse, cannot automatically step in to make financial decisions. Someone needs legal authority before a house can be listed and sold. There are two routes.

Statutory guardianship through the Public Guardian and Trustee

Under section 16 of the Act, a person can request a capacity assessment from an assessor to determine whether the Public Guardian and Trustee should become the person’s statutory guardian of property. The request has to state, among other things, that reasonable inquiries found no attorney with authority over all of the person’s property. If the assessor issues a certificate of incapacity, the Public Guardian and Trustee becomes the statutory guardian as soon as it receives a copy.

A spouse, partner or relative can then apply to the Office of the Public Guardian and Trustee to replace it as statutory guardian. The application comes with a management plan explaining how the property will be managed. The replacement guardian has to follow that plan once approved.

A court appointed guardian

Under section 22, anyone can apply to the Ontario Superior Court of Justice to be appointed guardian of property for a person who is incapable of managing property, where it is necessary for decisions to be made on their behalf. A guardian of property has the same broad power as an attorney, anything the person could do if capable except make a will, subject to any conditions the court imposes.

Either way, the guardian carries the same duties described above, including the accounts and the rule about property gifted in a will. Ontario’s guardianship page explains both routes and notes that, for most people, having a power of attorney means a guardian will not need to be appointed. If you are in this position, speak with a lawyer before you talk to an agent, because the guardianship has to be in place before anyone can sign for the sale.

When the owner has died: the estate trustee takes over

A continuing power of attorney is terminated when the grantor dies. That is in section 12 of the Act. From that moment the attorney’s authority over the house ends, even if a sale was already being planned.

Authority then passes to the estate. Ontario describes the estate trustee as the only person with legal authority to manage or distribute an estate. Where the deceased owned real property, the estate normally has to be probated before it can be sold. The same family member may hold both roles, but each role carries its own authority and its own paperwork.

How the home was owned can also change the answer, for example where it was held jointly with a spouse. We do not cover joint ownership here because it turns on how title is registered. Our guide to selling an estate home in Markham covers probate, estate administration tax and timing. Our post on probate in Thornhill walks through the same process for that part of the city. Confirm your own situation with an estates lawyer.

Practical steps for a Markham sale under a power of attorney

If you hold a power of attorney and the family has agreed the house should be sold, this is the order we suggest:

1. Find the original document and have a real estate or estates lawyer confirm it is a continuing power of attorney for property, that it is in effect and that it allows a sale.
2. Check the will, if you can, for a specific gift of the house. Raise any such gift with the lawyer before listing.
3. Talk with your parent about the sale as far as they are able to take part. Keep supportive family members informed. The Act asks for both.
4. Open the accounts before the first transaction: a list of assets and liabilities as of that date, then a running record of everything that follows.
5. Get a written opinion of value and look at what similar homes nearby have actually sold for. Our recently sold Markham homes and a free home valuation are good starting points. Our page on how we sell homes in Markham covers the listing itself.
6. Sign the listing and the offer as attorney in the form your lawyer advises. Give the lawyer a copy of the power of attorney early so it can be reviewed for closing.
7. Deposit the proceeds into an account for the person, record the deposit and keep the closing statement with the accounts.

Our post on selling a parent’s house in Markham covers the family side of the move, from clearing a long held home to timing the sale around a care move. Our estate sales service explains how we work with attorneys, guardians and estate trustees.

None of this replaces advice from a lawyer. The right answer depends on the document, the will and the person’s circumstances. If you would like to talk through a sale you are managing for a parent, contact us.