Usually, lawyers who draft wills for their clients also prepare a power of attorney for property and personal care. These documents allow the client to choose who makes financial decisions or personal care decisions should the client become incapable. The person whose property is being managed and who signs the power of attorney is called the grantor. The person who is appointed to manage the property or make decisions about personal care (referred to, respectively, as the attorney for property or attorney for personal care) sometimes only sees the document after the grantor becomes incapable. Problems often arise because the attorney does not know what the responsibilities and duties are. If only the document came with an instruction booklet.
There is a curious quirk in the Substitute Decisions Act: while the Act explicitly permits a guardian of property appointed under a Power of Attorney for Property to take compensation for their services, there is no equivalent provision permitting Guardians of the Person appointed under a Power of Attorney for Personal Care to take compensation. An obvious question therefore arises: are guardians of the person entitled to take compensation for their services? And if so, how much?
Imagine Martin Markowitz’s sister coming into your office and telling you her brother’s story: “For nearly 30 years your psychiatrist takes over your life, claims your Southampton estate and your family business, as well as your Swiss bank account as his own. … He convinces you to become estranged from your only sister and persuades you that anyone you date is after you only for your money”.
While initiatives by lawmakers are being pursued to harmonize laws addressing the enforceability of capacity-related documents worldwide, this has not yet been finalized. Therefore, when issues regarding the enforceability of POAs arise, consultation with a litigation lawyer about what your options might be – potentially in coordination with a litigation lawyer in another jurisdiction – is recommended.
Is an Attorney for Property obliged to share the financial records of the incapable person with his/her family? Are members of the family entitled to see the medical records of the incapable person or is the Attorney for Personal Care entitled to deny them access?
A discussion about the gifts given to a daughter by her mother while the daughter is the attorney for property and personal care. It raises issues that flow from such gifts including the presumption of undue influence and whether taking such gifts breaches the fiduciary duty of the attorney for property and personal care.
One might expect that an attorney for property would have to pursue unpaid compensation that s/he may be entitled to within 2 years or the incapable person or his estate would a limitation period defence against the claim. Let’s see what the Court of Appeal for Ontario had to say on this issue in Armitage v. Salvation Army.
This is the second blog we have written about the Court of Appeal for Ontario’s decision in Vanier. The first blog dealt with the court’s comments regarding the propriety of capacity assessors opining on whether undue influence was exerted on the deceased. This blog will deal with undue influence in the context of a power of attorney dispute.
The Court of Appeal for Ontario’s decision in Vanier is a worthwhile read for lawyers who are dealing with the question of undue influence in the context of a power of attorney dispute. Many interesting issues were addressed including the appropriate test for undue influence, the onus of proof, and the applicability of the doctrine of suspicious circumstances.
My friend Moe was appointed an attorney. He took on the role with the attitude – “how hard could it be?” He then asked me where he could find a Power of Attorney for Dummies book. I could not find one. So in honour of my friend Moe I wrote this primer on what to do once you have been named as a power of attorney for property.