Category: Power of Attorney

17 Aug

Considerations for Determining the Validity of Powers of Attorney and Appointing Guardians for Property and Personal Care

Sanaya Mistry Capacity, Estate & Trust, Estate Litigation, Guardianship, Litigation, Power of Attorney Tags: , , , , , 0 Comments

In yesterday’s blog, I discussed the recent decision in Rudin-Brown et al v. Brown, 2021 ONSC 3366, focusing on the court’s decision in respect of the admissibility and weight given to the audio recordings of Carolyn Brown’s telephone conversations.

In today’s blog, I discuss the factors considered by the court in (i) determining that the 2016 powers of attorney were invalid, and (ii) declaring Carolyn’s 2009 power of attorney for property to be operative, and (iii) appointing Jeanne and Missy as Carolyn’s co-guardians of the person.

The court applied the factors outlined in  Royal Trust Corporation of Canada v. Saunders,  [2006] OJ No 2291, to determine whether or not Carolyn’s 2016 powers of attorney were executed under suspicious circumstances. Particularly, the court considered the following:

  1. The extent of physical and mental impairment of the grantor around the time the powers of attorney were signed;
  2. Whether the powers of attorney in question constitutes a significant change from the former powers of attorney;
  3. The factual circumstances surrounding the execution of the powers of attorney; and
  4. Whether any grantee was instrumental in the preparation of the powers of attorney.

Note, the consideration of “whether the will in question generally seems to make testamentary sense” does not apply to powers of attorney.

The court noted that, among other things, (i) there was evidence that Carolyn was having memory issues at the time the powers of attorney were signed, (ii) after visiting two law firms without success, Gordon downloaded forms for powers of attorney and some will templates from the internet, and (iii) one of the witnesses to the powers of attorney testified that Carolyn seemed “vaguely puzzled” the day she witnessed Carolyn’s signature and also stated that Carolyn said that Gordon had told her to sign the powers of attorney.

The court concluded that the powers of attorney were executed under suspicious circumstances in respect of capacity and undue influence. The court also concluded that Gordon failed to prove that Carolyn had capacity to execute the powers of attorney and declared the powers of attorney to be invalid. In addition, the court found that Gordon “failed to show that Carolyn signed the powers of attorney as a result of her own “full, free and informed thought” and has failed to rebut the presumption of undue influence arising from his and Carolyn’s relationship” and therefore concluded that “even if Carolyn had the capacity to sign one or both powers of attorney, they are not valid due to undue influence.”

In respect of appointing guardians of property and personal care for Carolyn, the court did not solely rely on Carolyn’s 2009 powers of attorney, but rather entered into a detailed analysis to determine who would be appointed as Carolyn’s guardians. As noted by Justice H. J. Williams,

“In appointing a guardian for property, the court shall consider whether the proposed guardian is the attorney under a continuing power of attorney, the incapable person’s current wishes and the closeness of the applicant’s relationship to the incapable person. Where there is an ongoing valid power of attorney, cases in Ontario and elsewhere have held that the court must first determine whether there is strong evidence of misconduct or neglect on the part of the attorney before the court should ignore the wishes of the donor.”

The court did “not hesitate to find that, in accordance with Carolyn’s 2009 power of attorney for property, Jeanne should be Carolyn’s guardian for property and that Carter should be the alternative attorney.” The court noted that in Carolyn’s 2009 power of attorney for personal care, Carolyn had named Gordon and Missy as her attorneys for personal care. While the court was satisfied that Missy would be able to fulfill the duties of guardian of the person, the court was not satisfied that Gordon would be able to do so for several reasons, some of which are outlined below:

  1. “A guardian must make decisions that are in the incapable person’s best interests”, which Gordon had failed to do consistently for Carolyn.
  2. “A guardian must seek to foster regular personal contact between the incapable person and supportive family members and friends” and Gordon failed to foster Carolyn’s relationships with Missy or Jeanne.
  3. “Gordon did not consult anyone other than Carolyn in preparing his guardianship plan.”
  4. Gordon intended to “discontinue a companion service for Carolyn that had been recommended for her and that she had been receiving and apparently enjoying.” Although Gordon said that “Carolyn does not remember the visits and is unhappy with how much they cost”, the court found that “it is more likely that Gordon was unhappy about the cost.”
  5. The court was also concerned by the fact that Gordon had failed to follow court orders. He failed to comply with Justice Kershman’s “order to stop recording Carolyn’s conversations.” It is important to note that the court found that “it was evident from Gordon’s evidence that he felt justified in ignoring a court order if he did not agree with it.”

In summary, the court concluded that “it is in Carolyn’s best interests for Missy and Jeanne to be jointly appointed as Carolyn’s full guardians of the person.”

Thank you for reading.

Sanaya Mistry

 

09 Aug

Comparing Powers of Attorney in Ontario

Arielle Di Iulio Elder Law, Estate Planning, Power of Attorney Tags: , , 0 Comments

A power of attorney (POA) is a legal document that gives someone else the authority to make decisions on your behalf. The term “attorney” refers to the person(s) that you have chosen to act on your behalf. There are three types of POA in Ontario: general POAs for property, continuing POA for property, and POA for personal care. These documents can be very useful planning tools; however, it is important to understand the differences between them so that they can be used optimally. This blog compares the three types of POAs in Ontario.

1. General Power of Attorney for Property

A general POA for property can give your attorney the right to make decisions with respect to all or some of your finances and property. Unless you expressly restrict your attorney’s powers in the POA document, they will be able to do anything that you can do concerning your property, except make a Will.

A general POA can be limited by task, by type of property, and/or by time. For example, you may want to grant a POA for the specific purpose of selling your home. If you do not want everything you own to be managed by your appointed attorney, you could limit the property that is covered by your POA. A common example is to exclude all corporate assets from your POA. You can also specify whether the general POA starts from the moment it is executed or upon a specific date or event. To ensure that the POA is used as intended and without issue, any restrictions placed on the attorney’s powers should be clearly and unequivocally set out in the POA document.

It is important to note that a general POA allows your attorney to act on your behalf only while you are mentally capable of managing your own affairs. The general POA ends and cannot be used if and when you become mentally incapable.

2. Continuing Power of Attorney for Property

A continuing or enduring POA for property is essentially the same as a general POA for property with one key difference: the continuing POA for property allows your attorney to continue acting on your behalf even after you become mentally incapable of managing your own affairs. To ensure that the POA endures beyond your incapacity, the document must be a Continuing Power of Attorney for Property or expressly state that your attorney(s) may continue to act if you become mentally incapable.

In order to make a POA for property, you must be at least 18 years old and possess the requisite level of mental capacity as described in s. 8(1) of the Substitute Decisions Act.

3. Power of Attorney for Personal Care

A POA for personal care covers decisions relating to your personal health and well-being, such as medical treatment, diet, housing, clothing, hygiene, and safety. Similar to a POA for property, the attorney for personal care will have the authority to make almost every decision related to your personal care that you would normally make for yourself unless their powers are otherwise restricted in the POA document.

Unlike a POA for property, a POA for personal care may only be used when you are not mentally capable of making the personal care decision yourself. In other words, your attorney can only step in when there is a personal care decision that you are incapable of making for yourself. Depending on the specific decision at issue, either your attorney or a health professional must determine whether you are incapable of making the decision before your attorney can act on your behalf.

In order to make a POA for personal care, you must be at least 16 years old and possess the requisite level of mental capacity as described in s.47 of the Substitute Decisions Act.

The Office of the Public Guardian and Trustee provides POA document templates, which can be found here. However, it is best to obtain legal advice when creating a POA to ensure that it is drafted in a way that will allow your attorneys to manage your property and/or personal care as you intended.

Thanks for reading!

Arielle Di Iulio

07 Jun

Counterpart Signing for Wills and Powers of Attorney

Sanaya Mistry Power of Attorney, Wills Tags: 0 Comments

The practice of law has evolved greatly over the last few months, especially in the area of Estates.

One of the more recent changes comes with the revocation of O.Reg. 129/20: Signatures in Wills and Powers of Attorney and the amendments to the Substitute Decisions Act and the Succession Law Reform Act.

As of May 20, 2021, there is a requirement for the signatures and subscriptions on Wills or Powers of Attorney, executed using audio-visual communication technology, to be made contemporaneously. An acceptable manner of meeting this requirement is for the signatures and subscriptions to be made by signing or subscribing complete, identical copies of the Will or Power of Attorney in counterpart, which together constitute the entire document.

“Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.

 

Under section 3.1(2) of the Substitute Decisions Act,

(2) A requirement under this Act that a power of attorney be executed in the presence of witnesses may be satisfied through the use of audio-visual communication technology, if,

(a)  at least one person who is acting as a witness is a licensee within the meaning of the Law Society Act at the time;

(b)  the signatures required by this Act are contemporaneously made; and

(c)  the prescribed requirements, if any, are met.

 

Section 3.1(3) clarifies that SDA “for the purposes of clause (2)(b), the signatures required by this Act may, subject to any prescribed requirements, be made by signing complete, identical copies of the power of attorney in counterpart, which shall together constitute the power of attorney.

 

Similarly, under section 4(2) of the Succession Law Reform Act,

(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

 

Section 4(3) clarifies that while the use of audio-visual communication technology is permitted to satisfy the requirement in section 4(2)(b) or (c), the following requirements must be met:

(a) at least one person who acts as a witness is a licensee within the meaning of the Law Society Act at the time;

(b) the making or acknowledgment of the signature and the subscribing of the will are contemporaneous; and

(c) the requirements specified by the regulations made under subsection (7), if any, are met.

 

Further, section 4(4) notes that “for the purposes of clause (3) (b), signatures and subscriptions required to be made under clause (2) (b) or (c) may, subject to any requirements specified by the regulations made under subsection (7), be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.”

 

Thank you for reading.

 

Sanaya Mistry

15 Mar

Model Orders for the Estates List in the Toronto Region!  

Sanaya Mistry Capacity, Estate & Trust, Estate Litigation, Guardianship, Litigation, Passing of Accounts, Power of Attorney, Support After Death, Trustees, Wills Tags: , , , , , , , , 0 Comments

The Consolidated Practice Direction Concerning the Estates List in the Toronto Region was established for the hearing of certain proceedings involving estate, trust and capacity law, applying to matters on the Estates List in the Toronto Region.

As of March 9, 2021, Part VII (Contested Matters – Estates) of this practice direction was amended to make reference to model orders prepared by the Estate List Users’ Committee.

Generally, parties are expected to take the time and care to prepare proposed orders giving directions for consideration by the court. If the parties are unable to agree upon an order giving directions and a contested motion for directions is required, each party must file a copy of the draft order giving directions it is seeking with its motion materials.

 

In addition to providing requirements for what orders giving directions should address, where applicable, this practice direction now includes the following model orders:

  1. Order Giving Directions – Appointment of Section 3 Counsel
  2. Order Giving Directions – Power of Attorney/Guardianship Disputes
  3. Order Giving Directions – Will Challenge
  4. Order Giving Directions – Dependant’s Support
  5. Order Giving Directions – Passing of Accounts

 

As noted in the practice direction, the preparation of draft orders for consideration by the court will greatly expedite the issuance of orders.  Where the relevant model orders have been approved by the Estate List Users’ Committee, a copy of the draft order showing all variations sought from the model order must be filed.

The addition of model orders can greatly benefit the Estates List in the Toronto Region. Among other things, these model orders provide a baseline for all parties, such that it can significantly reduce drafting time and potential disagreements on wording among parties, which in turn can increase efficiency and reduce costs.

Many thanks to the Estate List Users’ Committee for their time and efforts in preparing these model orders!

Thank you for reading.

 

Sanaya Mistry

09 Mar

Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity

Arielle Di Iulio Capacity, Elder Law, Health / Medical, Power of Attorney Tags: , , , , , 0 Comments

Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.

Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:

  • a sample power of attorney for personal care;
  • a sample advanced health care directive;
  • a sample personal directive;
  • a sample ‘Dear Doctor’ letter; and
  • a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.

Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.

What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.

Thanks for reading!

Arielle Di Iulio

03 Feb

A Third Look at PGT v Cherneyko, 2021

Ian Hull Capacity, Elder Law, Guardianship, Litigation, Power of Attorney Tags: , , , , , , 0 Comments

Earlier this year, our colleague Doreen So, blogged in two parts (here and here) on the matter of PGT v Cherneyko. It is a blog that discusses a litany of failures by an attorney for property. While Doreen covered the facts in full, they are worth repeating here in part:

“Jean Cherneyko is a 90-year-old woman.  Jean did not have any children of her own.  Her closest known relative was a niece in the US.  By the time of the PGT application, Jean was in a long-term care home.  Prior to that, Jean lived alone in the same home that she had lived in since 1969.  Jean had a friend named Tina who she had known for about five years.  On August 15, 2019, Jean and Tina went to a lawyer’s office.  Jean named Tina as her attorney for property and personal care.  Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate.  A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina […]”

The PGT applied to take over as guardian for property and, among other things, to set aside the gift to Tina. The court agreed and ordered the $250,000 returned to Jean on the basis of resulting trust.

In a novel approach to the law of gifts, the court in Cherneyko relied on Pecore to establish that the gift ought to be returned, saying: “The leading Canadian case on the law of gifts, the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII) at paras. 24-26 established that where a gratuitous transfer of property is found, there is a presumption of a resulting trust. The onus falls to the recipient to rebut the presumption.” In the court’s view, Tina failed to rebut the presumption.

But this represents a new application of the Supreme Court’s analysis and it’s worth revisiting Pecore.

In 2007, Justice Rothstein, writing for a unanimous court (Justice Abella concurring) looked closely at gratuitous gifts of joint bank accounts, between parents and children, and whether the presumption of resulting trust and advancement applied in modern times:

“The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a transfer is challenged, the presumption allocates the legal burden of proof.  Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.”

The decision in Cherneyko represents a significant expansion of the principles of Pecore by applying them to inter vivos gifts between unrelated adults. Traditionally, if the courts determine that a transferor lacked the requisite capacity, the gift is void as the transferor lacked the capacity to form the proper intention to gift. Ball v. Mannin, an almost 200-year-old UK case established the original test for granting a gift and held that a person had capacity if the person was “capable of understanding what he did by executing the deed in question, when its general purport was fully explained to him.” The Supreme Court has previously outlined a separate test in Geffen v Goodman Estate in 1991, examining the nature of the relationship itself, and applying a presumption of undue influence where there is the presence of a dominant relationship. While the failed gift in Cherneyko was ultimately returned under a resulting trust, it will be fascinating to see if other courts also continue this expansion of Pecore.  We’ll keep you posted.

Thanks for reading!

Ian Hull and Daniel Enright

 

19 Jan

PGT vs. Cherneyko, Part 2: Breaches of Fiduciary Duty in the Time of Covid

Doreen So Capacity, Ethical Issues, Executors and Trustees, Guardianship, Litigation, Power of Attorney Tags: , , , , , 0 Comments

Yesterday, I blogged on Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107.  Today’s blog will focus on some of the breaches of fiduciary duty that were found by the Court.  For those who have not read yesterday’s blog, this is a case that involves Jean, a 90 year old woman, and Tina, the attorney for property, who was purportedly given a gift of $250,000.00 just days before Jean was hospitalized for acute delirium and progressive cognitive decline.

While the purported gift of $250,000.00 to Tina was found to be invalid, the Court went on to find that Tina was in breach of her fiduciary duty to Jean by accepting the money.  Tina was in breach because she knew that Jean was exhibiting signs of cognitive decline when they went to the bank.  In the Court’s view,

“a person acting in a fiduciary capacity for a person actively demonstrating moments of irrationality should be very cautious about any big financial moves that person claims they want to make in and around such periods of demonstrated incapacity. Even if Jean was clearly acting in a competent manner during the few hours she attended the CIBC with Tina on August 27, 2019, I agree with the submissions of the PGT it is no answer to an accusation of breach of duty to assert that an attorney was simply acting in accordance with the wishes of the grantor of the attorney. Tina should have proceeded with caution at that time. I find she did not exercise the appropriate degree of caution and good judgment given the circumstances about which she knew.” (para 42)

The Court also reiterated Justice Penny’s comments in Ontario (Public Guardian and Trustee) v. Harkins, [2011] O.J. No. 3313,  that a fiduciary’s first duty is to see to the best interest of the person regardless of what their stated wishes may be.  The Court was very critical of how a $250,000.00 gift to Tina could possibly benefit Jean, and expressed disapproval on how there was no evidence of any effort on Tina’s part in considering whether this money would better serve Jean if it was applied towards Jean’s in-home care instead of admitting Jean to a long term care home.

Of relevance to the unique circumstances that surround the care of others during Covid-19, the Court commented that,

“since March 2020 more than at any time in the past, any genuinely concerned person charged with caring for an elderly person in long term care would have at least considered the issue of taking whatever steps could be taken to remove the person from this situation if it was in any way possible.” (para. 47)

Instead, Tina allowed her adult son to move into Jean’s home, and she was found to be actively misusing Jean’s assets for her own and her family’s benefit which were additional breaches of her duties as fiduciary.  The Court also disapproved of how Tina did not take any steps to sell Jean’s house in order to maximize or preserve its value which, reading between the lines, seem to be a concern for the uncertainty in today’s markets.

Thanks for reading!  Stay safe!

Doreen So

 

18 Jan

PGT vs. Cherneyko, Part 1: Context and Timing is Everything

Doreen So Capacity, Elder Law, General Interest, Guardianship, Power of Attorney, Uncategorized Tags: , , , , , 0 Comments

Right from the start, 2021 is starting to look like it will be another extraordinary year of historic significance.  In the world of estates, trusts, and capacity litigation, there was a decision released on January 5th where serious breaches of fiduciary duty by an attorney for property were found and the PGT was ordered to take over.  The facts in Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107, read like a law school case study and the reasons are worth noting.

Jean Cherneyko is a 90 year old woman.  Jean did not have any children of her own.  Her closest known relative was a niece in the US.  By the time of the PGT application, Jean was in a long term care home.  Prior to that, Jean lived alone in the same home that she had lived in since 1969.  Jean had a friend named Tina who she had known for about five years.  On August 15, 2019, Jean and Tina went to a lawyer’s office.  Jean named Tina as her attorney for property and personal care.  Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate.  A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina, and $195,329.50 was transferred to Jean’s niece.  Days later on August 31st, Jean was hospitalized for acute delirium and progressive cognitive decline.  During Jean’s admission, Tina noted that Jean had become increasingly confused over the prior few months and that Jean exhibited lethargic behaviour and complained of bodily soreness.  On September 1, 2019, Jean was diagnosed as being cognitively impaired.  Thereafter, Jean was transferred to long term care on October 1st based on Tina’s authorization as Jean’s attorney for property.  Short time after that, Tina’s son moved into Jean’s home and the PGT started to investigate in March, 2020 when the bank froze Jean’s accounts.

As a result of their investigation, the PGT brought an application to remove and replace Tina as Jean’s attorney for property.  The PGT also sought to set aside the $250,000.00 transfer to Tina and the return of various other sums that were received by Tina, which totalled approximately $350,000.00.

First, the Court found that the transfer of $250,000.00 to Tina was not a gift.  Tina failed to rebut the presumption of resulting trust for the gratuitous transfer.  Tina put forth evidence that there was a bank manager who spoke to Jean at the time of the transfer, and that the banker told Jean that she would have still have enough money to live after the transfers to Tina and the her niece.  This evidence was tendered through Tina’s affidavit without any direct evidence from the banker.  The Court disregarded Tina’s reliance on the banker’s involvement because Tina herself had deposed that Jean was having “moments of delirium and irrationality, her condition fluctuated between lucidity and confusion” in late August, 2019 (para. 31) and there was no evidence that the banker was informed.

The Court also seriously questioned whether any of the payments to Tina were truly what “Jean wanted” because Jean’s power of attorney for property clearly stated that there was to be no compensation.  The Court agreed with the PGT’s contention that Tina should not have paid herself $2,000.00 per month in compensation and on how that sum was unreasonably high given that Jean’s long term care costs were only $2,701.61 per month.

The value of the transfers, which was about a quarter of Jean’s net worth at the time, when considered in the context of Jean’s September 1st diagnosis also led the Court to find that Jean lacked capacity to gift Tina such a substantial sum.

The Court’s focus on context, timing, and proportionality as benchmarks in its analysis are very important for litigators and advisors to keep in mind.

Stayed tuned this week for Part 2 on Cherneyko: the breaches of fiduciary duty.

Thanks for reading,

Doreen So

 

22 Dec

Virtual Signing of Wills and Powers of Attorney in Ontario Extended to January 20, 2021

Sanaya Mistry Elder Law, Estate & Trust, Power of Attorney, Wills Tags: , , 2 Comments

In July, my colleague Paul Trudelle discussed the Virtual Signing of Wills, noting that in response to the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney.

On December 10, 2020, pursuant to Ontario Regulation  458/20: Extensions of Orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, virtual signing of Wills and Powers of Attorney have been extended until January 20, 2021 in Ontario.

Ontario Regulation 129/20: Signatures in Wills and Powers of Attorney among other things, provides the following:

1. The requirement for a testator or witness to be present in each other’s presence for the making of a Will (or Power of Attorney) may be satisfied by means of audio-visual communication technology, with certain restrictions.

2. “Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.

 

3. At least one person who is providing services as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution of the Will (or Power of Attorney).

4. The signatures or subscriptions may be made by signing or subscribing complete, identical copies of the Will (or Power of Attorney) in counterpart, which together shall constitute the Will (or Power of Attorney).

5. For this purpose, copies of a Will (or Power of Attorney) will be considered identical even if there are minor, non-substantive differences in format or layout between the copies.

Thank you for reading.

Sanaya Mistry

 

26 Oct

Witnessing Requirements for Powers of Attorney

Nick Esterbauer Capacity, Elder Law, Power of Attorney Tags: , , , , , , 0 Comments

In Ontario, a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care must be signed by two witnesses.  As our readers also know, as a result of COVID-19, witnessing and execution requirements for Powers of Attorney in Ontario have been relaxed to facilitate access to incapacity planning during the pandemic.  These provisions have recently been extended to November 21, 2020.  Provided that one witness to a Continuing Power of Attorney for Property or Power of Attorney for Personal Care is a licensee under Ontario’s Law Society Act, the document may be witnessed using audiovisual communication technology and signed in counterpart.  The document does not otherwise need to be witnessed by a lawyer (although, where a lawyer has assisted in the preparation of Powers of Attorney, it will often be most practical for the lawyer and one of his or her staff to witness the client’s execution of the document).

Especially in light of social distancing measures, it is important to keep in mind the restrictions on who can witness incapacity planning documents.  In Ontario, neither a Continuing Power of Attorney for Property nor a Power of Attorney for Personal Care can be witnessed by:

  • the attorney or the attorney’s spouse;
  • the grantor’s spouse;
  • a child of the grantor;
  • a person whose property/personal care is under guardianship; or
  • an individual of less than eighteen years old.

If the lawyer him or herself is being appointed under the document, which is not an uncommon practice, the involvement of a second lawyer or a paralegal in the virtual execution and witnessing of the document(s) may be necessary.

In the Yukon, the witnessing requirements for Powers of Attorney are somewhat different.  As it currently stands, in order for a Continuing Power of Attorney for Property (there referred to as an Enduring Power of Attorney) to be effective, a Certificate of Legal Advice must be provided by a lawyer.  As a result, the lawyer typically witnesses the Power of Attorney, which is not otherwise valid.   While only one witness is required, the lawyer providing the Certificate cannot be the attorney or the attorney’s spouse.

A recent article from Canadian Lawyer reviews proposed changes to Yukon’s Enduring Power of Attorney Act.  One of the key amendments is the replacement of the requirement that a lawyer be involved in witnessing the execution of Continuing Powers of Attorney for Property with the option of the witnessing of such documents by two other individuals.  Similar to the requirements in Ontario, a witness must be an adult and cannot be the spouse of the donor, the attorney, or the spouse of the attorney.

If approved, the recent Yukon Bill will eliminate the necessity that a lawyer be involved in the witnessing of Powers of Attorney to increase access to incapacity planning throughout the territory.

Thank you for reading.

Nick Esterbauer

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