A person may wish to appoint a substitute decision-maker by executing a Power of Attorney. A person may wish to appoint a substitute decision-maker to assist him or her because they are concerned that their mental capacity to make decisions could diminish as a result of their age, health, or injuries. A grantor who grants a power of attorney permits the named attorney to step into the shoes of the person granting the Power of Attorney and make decisions on his or her behalf.
The Substitute Decisions Act, 1992 is the legislation that governs power of attorney and capacity issues.
There are three types of powers of attorney in Ontario:
1. power of attorney for property;
2. a non-continuing Power of Attorney; and
3. power of attorney for personal care
A power of attorney for property allows the person named in the power of attorney to make decisions for the person with respect to the management of his or her financial affairs. Section 2(1) of the Substitute Decisions Act states that a person who is eighteen years of age or more is presumed to be capable of entering into a contract. This means that the person who acts as a power of attorney for property must be at least 18 years of age.
A power of attorney for personal care allows the person named in the power of attorney to make decisions for the person with respect to his or her housing, food, health, safety, hygiene and clothing. Under section 2(2) of the Substitute Decisions Act, a person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. This means that the person you choose as your power of attorney for personal care must be at least 16 years age.
Why appointing a substitute decision-maker through a power of attorney is a very important decision.
Given its broad authority, the Power of Attorney is the subject of various complaints, problems. Some of the issues that can arise during the course of power of attorney litigation include,
• the validity of the power of attorney is being challenged for various reasons; but, could include that the person granting the power of attorney did not have the capacity to grant the power of attorney, or that that the power of attorney was fraudulently obtained.
• disputes that arise between the powers of attorney when two or more people have been appointed to act jointly and there is a disagreement as to how the decision(s) should be made;
• a person who is appointed by power of attorney acts as a fiduciary and has duties and responsibilities that he owes to the person granting him or her the power of attorney that are set-out under the Substitute Decisions Act, or the jurisprudence. For instance, the attorney must use reasonable care in acting, must not act in conflict with the grantor’s interests, must not make secret profits and must account for actions as a Power of Attorney. Disputes can arise alleging that the attorney has not discharged his or her responsibilities, breached his or her duties or has been negligent in his or her performance as a power of attorney.
• disputes may arise where an attorney has co-mingled the assets of the grantor with his or her own personal assets.
• disputes may arise where the attorney has mismanaged the grantor’s assets and can no longer account for the full value of the grantor’s assets.
• disputes about the commencement date of when a power of attorney began acting for the grantor.
• conflicts that can occur when a grantor has granted multiple powers of attorney at different times and there is a dispute about who has the proper authority to make decisions on behalf of the grantor;
• dispute can arise with respect to the compensation that a power of attorney may think they are entitled to;
• if the attorney’s conduct has arisen to a level, it may be sufficient for grounds to seek the court’s intervention to remove the attorney.
Why Choose Us
Power of attorney disasters is all too common today. Bickhram Litigation has a great deal of experience in bringing claims against an attorney or defending power of attorney disputes.
We provide sound legal advice and guide attorney’s for property and personal care through any complaints that have been made against him or her for their actions as a power of attorney. For more information on Power of Attorney litigation, please contact us for a complimentary consultation.
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