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As Canadians age, it is common to see older adults become incapable or physically unable to manage their own affairs and make vital decisions regarding their property and personal care. A power of attorney is used to appoint a substitute decision maker while the person is still capable to ensure a smooth transition of decision-making authority should the granting person lose their capacity. The substitute decision maker is referred to as an “attorney” for property or personal care, not the drafting lawyer. Disputes related to powers of attorney have increased as the documents have become more popular over the years.
When Does a Power of Attorney Activate?
When a power of attorney comes into effect depends on how it is drafted by the granting person’s lawyer. Powers of attorney are drafted to come into effect as soon as it is signed or at a later date when the granting person lacks the capacity to manage their affairs.
Types of Powers of Attorney
There are two types of powers of attorney in Ontario: power of attorney for property and power of attorney for personal care. A power of attorney for property allows the named attorney to make financial decisions in the best interests of the granting person, while a power of attorney for personal care allows the named attorney to make decisions relating to the granting person's personal care.
Commonly Litigated Issues
Estate and power of attorney litigation issues often arise due to the mismanagement of the named attorney, or if there is a dispute among two or more joint attorneys about decisions the attorneys cannot agree on. The issues that can arise in power of attorney litigation can include accusations that the attorney is exercising their powers improperly or when multiple powers of attorney were granted at different times.
Several tests exist to determine if the granting person has become incapable with respect to their property and/or personal care. Capacity can wax and wane over time, and just because a person may have lost the capacity to do one thing, it does not necessarily follow that they have also lost the capacity to direct a medical professional or properly dress and feed themselves.
For additional information on this or any other Estate-related matter, feel free to contact our E is for Estate team. CONTACT US HERE. Erin Watson, J.D. E is for Estates
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