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Jagmohan Singh Nanda
Granting Power of Attorney to a person confers the right to make decisions on behalf of the person giving the right. Once a person receives a power of attorney, they are also known as substitute decision makers.
They become responsible for handling the complete financial affairs of the person who is not capable of doing that on their own (Grantor). The attorney is appointed by the Grantor before they lose their decision- making capacity.
Though a Power of Attorney is a useful tool to reduce potential conflict, it can also give rise to newer disputes.
Power of attorney can be made for two different matters- for property and personal care. In Ontario, the Substitute Decisions Act outlines the scope of duties and obligations of an attorney who holds a power of attorney for personal care and property.
In case of Property, the decisions of Power of attorney holder can be many including but not limited to managing the grantor’s investments and income consistently, making timely bill payments, doing their budgeting, etc. It can also include making decisions about the place of residence and the living expenses of the grantor.
Personal care decisions can be made on matters such as food, clothing, shelter or personal hygiene. As per law, only certain persons can be appointed as personal care attorneys including the partner, relative or grantor’s spouse.
A power of attorney can come into effect in different circumstances. It may come into effect immediately upon its creation and subsequent to drafting or it may become active once a medical professional deems the grantor to lack mental capacity.
Once a grantor is incapable of making decisions on their care and property matters, tests may be needed to confirm the incapacity. The testing process will require the support of an experienced Estate lawyer in addition to a knowledgeable gerontologist or capacity assessor.
Many times, a power of attorney does not take effect immediately which is the prime reason that it is known as a Continuing Power of Attorney in Ontario.
It is also important to note that the power of attorney legislation is different in all Canadian provinces. If you own property in multiple provinces, travel often or live in a separate province from the province of property ownership, a power of attorney will need to be drafted carefully.
At the time of drafting the Power of Attorney, the grantor is made responsible for taking care of the financial and health needs of their loved one. In few circumstances, the attorney may neglect the grantor’s interests or end up depleting their wealth. The y may not completely understand the roles and obligations of being an attorney.
The reasons for Power of Attorney disputes can be many starting with identifying the final attorney when the grantor may have named multiple people as an attorney in their life. The mental capacity of the grantor to grant the attorney may be another reason for the dispute. If the grantor does not agree with the decisions made by the attorney, they may choose to revoke the Power of Attorney.
At Nanda & Associate Lawyers, our experienced Power of Attorney Lawyers understand your specific circumstances and provide you with cost-effective and customized estate planning solutions for each of them. We can support you to understand the responsibilities and duties of being granted a power of attorney or draft one as per provincial regulations to safeguard yours and your loved one’s interests.
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