A person can grant another person the right to manage their health and financial matters and take appropriate decisions. The grantor can award power of attorney to protect their interests when they are incapable of doing so. It is essential to understand the complete scope and nature of a Power-of-Attorney. In Ontario Substitute Decisions Act, 1992 (SDA) governs substitute decision-making with respect to two planning documents created under the SDA; first, the continuing power of attorney (governing property), and second, the power-of-attorney for personal care.
A power-of-attorney may readily come into effect as soon as it is drafted. It is also possible for a power-of-attorney to come into effect after medical professionals opine that the grantor lacks mental capacity. Once a grantor is incapable of making decisions on their personal care and property matters, tests may be needed to confirm the incapacity. The testing process will require the support of an experienced Estate lawyer in addition to a knowledgeable capacity assessor. When a power-of-attorney does not take effect immediately, this is the prime reason that a power of attorney is known as a Continuing Power of Attorney in Ontario. It may have a clause making it effective once the grantor becomes incapable of managing their personal care and property matters.
Why have a Power of Attorney
By signing a power-of-attorney while capable, the grantor is able to have the grantor’s own choice as to an attorney to act on the grantor’s behalf in the event of incapacity or where the grantor, while capable, is simply unavailable when important decisions must be made or actions taken on a timely basis. Without a power-of-attorney in place at the time of incapacity, the process of installing a substitute decision-maker is more time consuming and more costly. And, of course, the identity of the person ultimately placed in that role cannot be known in advance. If an attorney is not chosen wisely by the grantor, it can adversely impact the grantor and their estate.
It is important to understand that the power of attorney legislation is different in all Canadian provinces. If you own property in multiple provinces or live in a different province from the one in which the property is owned, a power of attorney will need to be drafted carefully. LAW WISE Power-of-Attorney Lawyer will assist you to understand the role & responsibilities of the attorney and the capacity assessors will draft a power-of-attorney meeting your needs.
Role of an Attorney& disputes
All the decisions need to be made by the attorney in a planned and strategic manner. Sometimes the attorney may not have the requisite knowledge to make the best decisions in the interest of the grantor, while sometimes they may even act for their own benefit. In a few circumstances, the attorney may neglect the grantor’s interests or end up depleting their wealth. They may not completely understand the roles and obligations of being an attorney.
The attorney appointed by a power of attorney acts as a fiduciary and, as such, must account, must act with reasonable care, must not act in conflict with the grantor’s interests, and must not make secret profits.
Though a Power of Attorney is a useful tool to reduce potential family conflict, it can also give rise to disputes over the manner in which it has been or is being used. There may be circumstances where a dispute erupts as to identifying the final attorney when the grantor may have named multiple people as an attorney in their life. There can also be a dispute among the grantees regarding how the grantor’s affairs are to be conducted. Also the mental capacity of the grantor to grant the attorney may be another reason for the dispute. If the grantor does not agree with the decisions made by the attorney, they may choose to revoke the Power of Attorney.
Law Wise can support you to resolve any power of attorney disputes to safeguard your and your loved one’s interests.
Power Of Attorney for Property
As per the Substitute Decisions Act, granting a power of attorney for property gives the attorney holder the right to make financial decisions for the grantor and safeguard their best interests. Property decisions can be many including but not limited to managing the grantor’s investments and income consistently, making timely bill payments, doing their budgeting, etc. It can also include making decisions about the place of residence and the living expenses of the grantor.
A power of attorney for property is a continuing power of attorney if document (a) so declares itself, or (b) expresses the grantor’s intention that the authority given to the attorney may be exercised during the grantor’s subsequent incapacity to manage the property.
Great caution must be exercised to ensure that any limitation expressed in terms of an event is specific enough to ensure that there can be no ambiguity. If the meaning of the condition or restriction is uncertain, third parties to whom it is presented may not recognize the authority.
Power Of Attorney for Personal Care
Personal care decisions can be made on matters including but not limited to food, clothing, shelter, or personal hygiene. There are certain restrictions on appointing an attorney for personal care. As per law, only certain persons can be appointed as power of attorney for personal care including the partner, relative, or grantor’s spouse. Persons who provide health care or social, training, support, and residential services in exchange for compensation cannot be appointed.
Since powers of attorney for personal care are exercisable only when the grantor becomes incapable, it may be advisable not to impose an effective date based upon the onset of incapacity within the document itself, unless the grantor wishes to control the mechanism to be used for the incapacity.
How Our Power of Attorney Lawyer Help You?
We understand your specific needs & our Power of attorney lawyers with special knowledge or training would assume the task of recording your wishes in the power of attorney for property &power of attorney for personal care. We help you understand how the language might later be interpreted since it is unlikely for you to be able to predict this.