Anonymised, illustrative composite. A son tried to sell his incapacitated mother's home under a power of attorney she had signed years earlier — drafted, it turned out, as the wrong kind to still be valid.
At a glance
A Barrie bungalow, owned outright by an elderly widow, needed to be sold to help fund her long-term care after a stroke left her without capacity to manage her own affairs. Her son, holding a power of attorney she had signed six years earlier using an online legal-forms template, listed the house and accepted an offer at $540,000 on her behalf.
The real estate lawyer reviewing the file before closing asked the standard questions any POA sale gets: “did the grantor have capacity when they signed the document?”, plus the date of execution, the scope of authority, and whether the document was still in force. That last question is where the file stopped: the template the mother had signed was a general power of attorney for property, not drafted as a continuing one, and “a non-continuing power of attorney terminates if the grantor loses capacity, which makes it nearly useless” for exactly this situation. Her stroke had already ended it, months before her son ever listed the house.
DIY and template powers of attorney fail this way often enough that treadstonelaw.ca flags it as a pattern: “many defects only surface when someone tries to use the document — a bank flags the witnessing, or a lawyer reviewing it during an estate matter notices missing language”. A continuing POA has its own execution requirements too — signed by the grantor in front of two witnesses signing at the same time, with the attorney, the attorney's spouse, the grantor's own spouse or partner, and anyone under 18 all excluded from witnessing — none of which the family had checked when the document was first signed, because nobody expected to need it years later.
There was no dollar figure in dispute on the file itself — the $540,000 accepted offer and its deposit were never in question. What the family lost was time: the firm closing date could not be met once the lawyer refused to rely on the expired document, and every week of delay pushed back the funds the family needed for her care.
A power of attorney for property only remains usable after the grantor becomes mentally incapable if it was drafted as a continuing power of attorney in the first place — that choice has to be made, correctly, at signing, and it cannot be fixed retroactively once capacity is gone. Attempting to rely on a defective document anyway carries its own exposure: doing so “can expose the attorney to personal liability and may void the transaction entirely.” The lawyer's refusal to proceed was not caution for its own sake — it was the document simply no longer being legally capable of authorizing the sale.
The same review would have caught other defects too, even on a validly continuing document: a lawyer checks that the attorney is not engaged in self-dealing — selling the grantor's property to themselves, their spouse, or a corporation they control, which is treated as a serious breach — and confirms the grantor is still alive, since “a power of attorney terminates automatically on the grantor's death.” None of those applied here, but they are exactly the class of question the same review is built to catch.
Had the lawyer not asked, and had the son closed the sale on an already-terminated document, the transaction itself could later have been challenged as void — unwinding a completed sale, with a buyer who had already taken possession, is a far worse outcome for every party than a delayed closing while the family sorts out proper authority. The lawyer's refusal converted a potential void transaction into a manageable delay.
With his mother no longer able to sign a corrected document herself, the son could not fix this by getting a new power of attorney. The family had to bring in their own estates lawyer to obtain separate legal authority over her property — a court process distinct from the real estate file itself, and one that took real additional time before the sale could proceed on a proper legal footing. The buyer's lawyer agreed to an extension while that played out, on the same “who pays for the delay” principle that governs any other seller-caused closing delay.
The tell was sitting in the document from the day it was signed, not the day it was needed: whether a power of attorney is continuing has to be confirmed while the grantor still has capacity to fix it if it is wrong. Waiting until a sale is already underway to find out is the worst possible time to discover the answer. Compare a separating couple and one missing signature — a different way a file stalls on who is actually authorized to sign.
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