CAPACITY TO GRANT AND REVOKE A POWER OF ATTORNEY FOR PROPERTY

The factors to be applied in assessing capacity to grant or revoke a continuing power of attorney for property (“CPOAP”) is found at section 8 of the SDA. A person is capable of giving a CPOAP if he or she possesses the following:

(a) Knowledge of what kind of property he or she has and its approximate value;

(b) Awareness of obligations owed to his or her dependants;

(c) Knowledge that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) Knowledge that the attorney must account for his or her dealings with the person’s property;

(e) Knowledge that he or she may, if capable, revoke the continuing power of attorney;

(f) Appreciation that unless the attorney manages the property prudently its value may decline; and

(g) Appreciation of the possibility that the attorney could misuse the authority given to him or her.

The factors to be applied in ascertaining capacity for revoking a CPOAP are the same as that for granting a CPOAP. A person is capable of revoking a CPOAP if he or she is capable of granting one.

If, after granting a CPOAP, the grantor becomes incapable of giving a CPOAP, the document remains valid, as long as the grantor had capacity at the time it was executed.

The factors to be applied in determining requisite capacity to grant or revoke a CPOAP are often referred to being as less stringent than those required for the capacity to manage property. Again, the factors are simply different.

In fact, a person need not have capacity to manage his or her property to have capacity to grant or revoke a CPOAP. If the grantor is incapable of managing property, a CPOAP made by him or her is still valid so long as he or she meets the requisite standard or factors for capacity for granting that CPOAP at the time the CPOAP was made.

Assessments of capacity to make or revoke CPOAPs need not be conducted only by certified capacity assessors, although they certainly can be completed by assessors.

Indeed, it is the responsibility of the solicitor retained to draft the document, to assess the client’s capacity to grant or revoke a power of attorney, either for property or for personal care when asked to prepare such documentation for a client. This does not mean to suggest that a solicitor in discharging this duty of care may not recommend, encourage or suggest a formal assessment by an assessor in cases where litigation is likely, or in borderline cases, all in an effort to protect the autonomy of the individual and the decision made.

CAPACITY TO GRANT AND REVOKE A POWER OF ATTORNEY FOR PERSONAL CARE

The factors to be applied in granting or revoking a POA for personal care (“POAPC”) are found at section 47 of the SDA. A person is capable of giving a POAPC if the person has:

(a) The ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b) The appreciation that the person may need to have the proposed attorney make decisions for the person.

As with a CPOAP, a person who is capable of granting a POAPC is also deemed capable of revoking a POAPC.

A POAPC is valid if at the time it was executed, the grantor was capable of giving a POAPC, even if that person was incapable of managing personal care at the time of execution. The only exception to this is if the POAPC incorporates specific instructions for personal care decisions. Those instructions are only valid if, at the time the POAPC was executed, the grantor had the capacity to make the decision(s) referred to in the document.

The factors to be applied in assessing capacity to grant or revoke a POAPC have been referred to as less “stringent” (more correctly considered as “different”) than those for granting or revoking a CPOAP. While the factors applied in determining requisite capacity to grant a CPOAP incorporates a significant amount of information that the grantor must be able to comprehend, whereas, for a POAPC, the grantor is only required to be able to understand whether the proposed attorney for personal care has the grantor’s best interests in mind, and that the POAPC means that the proposed attorney may be authorized to make such personal care decisions for the grantor. Again, the determination is relevant.

Moreover, as noted above, the onus of determining capacity to grant or revoke a POAPC falls squarely on the solicitor who has been retained to draft the documents.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.