When Can an Attorney Act?

October 13, 2020 Natalia R. Angelini Capacity, Power of Attorney 1 Comment

New fears and anxieties brought on by the health crisis may play a part in the uptick we are seeing in the making of wills and powers of attorney documents. Ontarians, particularly vulnerable older Ontarians, may take comfort at this time in having their estate plans laid out, as well as having individuals in place to manage their finances and personal care in the event of illness, incapacity or physical inability to manage these tasks themselves.

Once these powers are granted, disputes can arise over when an attorney can start acting in the appointed role, particularly when incapacity is required prior to the attorney commencing to act. In the management of one’s property, donors often sign power of attorney documents where the ability to commence acting takes effect from the date of the document. However, donors sometimes opt to have the authority deferred to the time of incapacity. Similarly, when it comes to the management of one’s personal care, the attorney cannot act until the grantor lacks the capacity to do so.

How incapacity is determined is often impacted by the power of attorney document itself and the varying level of protections that a donor may wish to have in place. For instance, the grantor may choose to have the power of attorney document stipulate that (i) one physician’s letter opining that the donor is incapable will suffice, or (ii) two physician’s letters are required, or (iii) incapacity be determined by a formal capacity assessment conducted by an accredited capacity assessor.

Should a capacity dispute arise, it is noteworthy that the Substitute Decisions Act protects the privacy, dignity, and legal rights of the individual through the following provisions:

  • there is a presumption of capacity (s. 2);
  • a person whose capacity is in issue is entitled to legal representation (s. 3);
  • a person alleged to be incapable is entitled to notice of court proceedings (ss. 27(4) and ss. 62(4));
  • the court must not appoint a guardian if it is satisfied that the need for decisions to be made can be met by an alternative course of action that is less restrictive of the person’s decision making rights (ss. 22(3) and ss. 55(2));
  • in considering the choice of guardian for property or personal care, the court is to consider the wishes of the incapable person (ss. 24(5)(b) and ss. 57(3)(b)); and
  • subject to exceptions, a person has a right to refuse an assessment, other than an assessment ordered by the court (s. 78).

Giving someone the power to control our finances and personal care are some of the most important decisions we make that can impact the quality of life in our elder years. Sober and thoughtful consideration of the best person(s) for the role is essential, and may minimize discord, disputes and abuse in this area.

Thanks for reading and have a great day,

Natalia Angelini

 

1 Comment

  1. Gleb Morozov 2 months Reply

    Thank you, Natalia. You addressed a very interesting and demanded, in current circumstances, area. I agree that the issue of capacity remains very, if not the most, significant.

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