Capacity To Grant A Power Of Attorney
Fhara Pottinger
August 21, 2008
Everyone should have Powers of Attorney. In the absence of Powers, the government may intervene to make financial or even personal care decisions for you. No one wants strangers managing their affairs. In addition, obtaining a court order of guardianship is slow and costly.
Serious health care decisions are best made under a Power of Attorney. Although the law creates a ranked list of substitute decision-makers for health care that keeps it in the family as much as possible, that order of priority does not respect ability or the actual relationships between the family members, merely technical closeness of relationship. Non-blood family relationships are also not properly ranked. The absence of a Power of Attorney for personal care creates hardship, stress and confusion.
Financial disadvantage or outright financial disaster may result in the absence of a Continuing Power of Attorney for Property.
As with any other legal document, the person granting a Power must have the “legal capacity” to do so. Unfortunately, we occasionally see cases where people wait until mental alertness is slipping, or physical problems begin to affect concentration, alertness or memory before attempting to execute or sign a Power of Attorney.
We want you to know that even then it may not be too late.
In order to manage one’s own finances, the law requires that you are able to understand information that is relevant to making a decision in the management of your property, and that you are able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
The capacity required to sign a Power or, in other words, to decide who will make decisions that you might not be capable of making yourself, is different and has sometimes been described as a ‘lesser standard’, although some judges avoid that type of ranking language.
In order to sign a valid Continuing Power of Attorney for Property, you only need to:
- know what kind of property you have and its approximate value;
- be aware of obligations owed to your dependants;
- know that the Attorney will be able to do on your behalf anything in respect of property that you could do, except make a will, subject to the conditions and restrictions set out in the Power of Attorney;
- know that the Attorney must account for his or her dealings with your property;
- know that you may, if capable, revoke the continuing Power of Attorney;
- appreciate that unless the Attorney manages the property prudently its value may decline; and
- appreciate the possibility that the Attorney could misuse the authority given to him or her.
Memory lapses, ‘good and bad days’, and decreased concentration, do not necessarily prevent people from meeting this test. Even people with Alzheimer’s disease may, in some cases, be capable of signing a Power of Attorney.
If you are concerned about capacity or your lawyer has expressed concerns about your capacity, it is in your best interest to have a capacity assessment performed in order to determine whether you have the capacity to sign a Power of Attorney. Capacity assessors are available to test for capacity and provide protection for your Powers. If an assessment is not performed, medical evidence may be relied upon.
Because Powers are so important, we urge everyone to address this issue. Even if you, your parent or loved one, is no longer as sharp as once was the case, Powers should be considered.
In addition, even if a person is found not to have the capacity to sign the Power, judges have considered their wishes in deciding who to appoint as a guardian, or as is often the more significant issue, who not to appoint.
To ensure that your wishes are respected and that the person you want to handle decisions on your behalf has the legal ability to do so, it is time to invest in Powers of Attorney. Otherwise you are conceding that crucial decision to those who do not know family dynamics, abilities, or your wishes.
If you have any questions about granting a Power of Attorney or you would like to discuss the steps involved in obtaining Powers of Attorney, please feel free to contact Fhara Pottinger at (807) 625-8877 , or contact any member of our Wills and Estates group:
| John Cyr | (807)625-8880 | |
| Paul Jasiura | (807)625-8881 | |
| Deborah Humphreys | (807)625-8894 | |
| Ross Judge | (807)625-8888 | |
| Nick Melchiorre | (807)625-8883 | |
| Fhara Pottinger | (807)625-8877 |
