Power Of Attorney Litigation Lawyer Charles Ticker
As the population ages and grows more vulnerable, more and more of us will become incapable of looking after our affairs before we die. Appointing a substitute decision maker (the “attorney”) through an enduring power of attorney while we are capable is becoming very important.
Unfortunately, power of attorney disputes are increasing in frequency. Charges that the attorney is acting improperly or failing to fulfill his or her duties are being litigated more frequently. Attorneys have an ongoing duty to be accountable about the financial decisions they make. This duty frequently prompts complaints and claims against attorneys or requests to audit their accounts in the context of estate litigation or capacity litigation.
There are two types of power of attorney in Ontario:
1. Power of attorney for property; and
2. Power of attorney for personal care.
Pursuant to the Substitute Decisions Act, a power of attorney for property refers to the power to make financial decisions in the best interests of the grantor. Decisions related to property may include managing of the person’s income and investments on a day-to-day basis, budgeting, timely payment of expenses, decisions about the person’s living expenses and place of residence, etc.
The Substitute Decisions Act (s. 46) sets out the scope of duties of an attorney with a power of attorney for personal care. Personal care decisions strictly refer to personal hygiene, food, shelter, clothing, and medical care. The power of attorney for personal care is unique because it has special prohibitions on who can be appointed as an attorney. Legislation prohibits the appointment (unless the attorney is the grantor’s spouse, partner, or relative) if the person provides health care to the grantor for compensation or the person provides residential, social, training, advocacy, or support services to the grantor for compensation.
Estate litigation issues arise when mismanagement of the power of attorney is suspected or when there are two or more attorneys who were instructed to make decisions jointly. It is easy to imagine how attorneys can disagree on the living conditions, type of long-term care facility, or medical care of an aging parent. Tensions and the likelihood of litigation rise exponentially when it is a matter of life or death or withdrawing medical care from a terminally ill parent.
When Does a Power of Attorney Come Into Effect?
When a power of attorney comes into effect depends on how it is drafted. A power of attorney may come into effect as soon as it is drafted. It is also possible for the power of attorney to come into effect after a medical professional opines that the grantor lacks mental capacity.
The loss of mental capacity can arise in a variety of situations. It can be gradual and degenerative as in the case of an elderly person suffering from Alzheimer’s Disease or dementia. It can be sudden and unexpected as in the case of a person who is injured in a motor vehicle accident.
There are two different tests to determine if the grantor of the power of attorney has become incapable with respect to property and with respect to personal care. The nuances between the two legal tests can be complicated. In addition to the help of an experienced lawyer, you may also require the help of a capacity assessor, gerontologist, or the person’s family doctor.
Many people who grant a power of attorney do not realize that it may take effect immediately, rather than when the person becomes mentally incapable years later. This is why in Ontario, the legal document is referred to as a continuing power of attorney. This is a common misconception when a standard power of attorney kit is downloaded from the internet or purchased from a book shop.
Alternatively, the continuing power of attorney may stipulate that it comes into effect only when the grantor becomes incapable of managing property or incapable of making personal care decisions. What if the document does not outline a way to determine when mental capacity has been lost? Charles Ticker is an experienced Power of Attorney lawyer who can help you interpret the Substitute Decisions Act and explain the role of a capacity assessor.
Some of the issues that can arise in power of attorney litigation include:
1. Charges that the attorney is exercising the power of attorney inappropriately. This may not be a matter of dishonesty or other culpability. For example, one attorney whose mother was in a nursing home put his name on her joint bank accounts; when his brother asked for an accounting of how the funds were managed, it turned out that he simply did not understand what his duties were.
2. Conflicts. When there are multiple powers of attorney, as sometimes happens, the question of which one governs becomes critical.
3. Counseling. An attorney may need a trusted advisor to ensure that he or she is provided with all necessary information, acquainted with relevant procedures and is otherwise equipped to handle the duties of the position. Charles can advise on how to fulfill those duties and avoid disputes.
Powers of attorney and different jurisdictions
Another often unforeseen issue is the difference between power of attorney legislation in different provinces in Canada. Powers of attorney are governed by separate legislation in each province. The requirements to draft a valid power of attorney are fundamentally important. This issue affects people who travel often across provinces, live part-time in another jurisdiction, or own property outside of Ontario.
If an Ontario Power of Attorney is not valid in the province where you own property, someone else may have to make decisions regarding the disposition of this property.
If you exercise a Power of Attorney, you need to know your responsibilities and ensure that you have the means to carry them out. You can trust Charles Ticker’s knowledge and experience in this area of law.
The information on this website is not legal advice. It is for informative purposes only. To schedule an appointment, call Charles at: 1-866-677-7746. A lawyer can only be retained after a consultation where all the details of the matter and retainer are discussed.