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.
No one likes talking about getting sick or dying. But in today’s world, choosing a Power of Attorney (POA) is a difficult conversation we need to have with our loved ones. A Power of Attorney grants a person of your choosing the power to make important financial and medical decisions on your behalf, should you be unable to. However, studies show that 56% of Canadians have not written their will or powers of attorney. As a result, there are a growing number of families that have had to deal with difficult, stressful situations when a family member becomes ill or incapacitated.
When the time comes to consider estate planning options, there are a variety of different legal mechanisms that you can use to protect your personal and financial interests. One of the most effective ways of ensuring that your wishes are respected if you become infirm or incapable of making decisions is to grant a power of attorney for property or personal care to someone you trust. The only problem is that the future is uncertain and family dynamics change. The person named as your attorney today might not be the best person for the job when it really matters. If the person appointed as your parent’s power of attorney drops the ball, are you stuck with that power of attorney or do you have options?