Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
The question of when a power of attorney comes into effect is determined on how it is drafted. A power of attorney can come into effect as soon as it is drafted, or when a medical professional opines that the grantor lacks mental capacity. It is important to note that the loss of mental capacity can arise in different situations, and can be gradual or have a sudden onset. It is therefore critical to choose a power of attorney for both property and personal care while you are still healthy and mentally capable of doing so.
According to the Substitute Decisions Act, a power of attorney for property refers to the financial decisions that need to be made in the best interest of the grantor. These decisions can include managing one’s personal income, investments and day-to-day banking, such as payment of expenses.1 Further, the Act also sets out the duties of a power of attorney for personal case, and refers to the decisions surrounding the grantor’s medical care and accommodations.
As the population grows, more power of attorneys have been named and as a result, more disputes have followed. People are eligible to name more than one person as their power of attorney, which forces both to act jointly in making the decisions. An issue that can arise in power of attorney litigation is charges that the attorney is exercising that power inappropriately. Named attorneys have an ongoing duty to be accountable for the decisions they make, which is frequently the basis of complaints and claims make against them.
Generally, courts will pay attention to the choice of who is to be the attorney for personal care if there is a written power of attorney when the grantor was of sound mind.2 In order to be removed as a power of attorney, there must be evidence of misconduct or neglect with regard to the grantor’s property or personal care. However, in cases where there is no misconduct, a court can terminate a power of attorney if the original appointment no longer served the person’s best interest.
While a power of attorney document can be used for the protection of vulnerable or incapable people, there can be risks to what is considered such a powerful document. Often times, the grantor does not fully understand what privileges are being handed to the named power of attorney, which can result in an abuse of power. This may lead to the improper care for the grantor or a depletion of their assets. It is therefore imperative to take the proper time to understand what rights are being given to the attorney and ensuring you choose the right person.
Articles written by Stacey Staios:
Independent Contractor vs. Employee
Family Law Litigation - Part 2
Family Law Litigation - Part 1
Family Status Discrimination
Social Media Policies in the Workplace
Calculating Equalization Testamentary Capacity Aggravated and Punitive Damages Leaves of Absence in Ontario Co-Parenting In The Age of a Pandemic Corollary Relief Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Substitute Decisions Act 1992, s.72 Glen v Brennan (2006) O.J. No. 79