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What is a Continuing Power of Attorney?
A “Continuing Power of Attorney” is a document by which a person (the “grantor”) appoints another individual (the “attorney”) (usually a trusted friend, spouse, or other family member) to make decisions on the grantor’s behalf in the event that the grantor no longer has the mental capacity to do so. Sometimes, such documents are simply referred to as a “Power of Attorney.”
Are there different types of Powers of Attorney?
Yes. In Ontario, there is a “Continuing Power of Attorney for Personal Care” and a “Continuing Power of Attorney for Property.” Both of these are effective even after the grantor of the power of attorney has lost capacity to manage his or her personal or financial affairs. In addition, there are power of attorney documents which become ineffective after a person has become mentally incapable (called a “Non-Continuing Power of Attorney,” which is sometimes also referred to simply as a “Power of Attorney”).
When does a Continuing Power of Attorney for Property become effective?
This depends on the document itself. If the document is silent on this point, then the Continuing Power of Attorney for Property becomes effective immediately, such that your attorney for property can begin acting on your behalf as soon as the document is signed and witnessed. However, most often the attorney will only begin acting once the grantor no longer has capacity to manage his or her property.
What does it mean to be incapable of managing property?
A person is incapable of managing his or her property if he or she is unable to understand information about his or her property or finances, or if he or she is unable to appreciate what could happen as a result of making a certain decision (or not making a decision) about these issues.
What happens if the attorney for personal care is not consulting with family members?
An attorney for personal care has a duty to consult with the incapable person’s family members. You may apply to the court for an order that the attorney consult with family members if the attorney is not already doing so.
Is a Power of Attorney the same thing as a “Last Will and Testament”?
No. A Last Will and Testament deals with the distribution of a person’s property after death. A Power of Attorney is only effective during a person’s lifetime. There is no requirement that one’s estate trustee be the same individual as one’s attorney under a Power of Attorney.
How do I know whether a Power of Attorney is valid?
The basic requirements for a Power of Attorney document to be valid are that the document must be properly completed, signed and witnessed, and that the grantor had the capacity to grant the Power of Attorney at the time it was drafted and signed. Whether a grantor had the capacity to create a Power of Attorney is often an issue that is in dispute and is decided by a court.
What can be done if an attorney appears to be abusing his power?
In some circumstances, it may be appropriate to contact the Office of the Public Guardian and Trustee or the fraud squad of a local police department. However, very often legal assistance will also be required in order to hold the attorney accountable for his or her actions. Litigation over issues relating to the actions of an attorney for property or care is, by its nature, often highly emotional. We have experience in this area and will be able to guide you through the process, defend your rights, and advocate effectively for your interests.
What can be done to defend against claims that an attorney for property or care has abused his or her power, when this is not the case?
Because such allegations can be emotionally fraught, experienced legal advice should be sought to help guide you through the legal process. We can advise you about your rights and advocate tenaciously on your behalf.
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