Recently, several clients have asked us: “I am my mother/father/aunt/uncle’s attorney for property. He/she is having problems remembering things, or has become sick. When do I start acting?”
While this seems like a simple question, it is not always clear, and can sometimes be difficult for an appointed attorney to determine.
In Ontario, it depends. Continuing powers of attorney may be effective immediately upon execution, or at a certain date or upon the happening of a trigger event defined by the grantor in the document, or when incapacity strikes.
Where there is no trigger event required in the document, the attorney can act as the grantor’s agent on the grantor’s instructions immediately; and he or she can begin making decisions regarding the grantor’s property as a fiduciary when he or she has reasonable grounds to believe the grantor is incapable of managing property.
It can become much more complicated where a trigger event is involved. Time must be spent during the planning stage to think about the practical applications of the type of trigger and to draft carefully without leaving room for confusion. If incapacity is the trigger, how is it to be determined? How do you deal with the need for consent prior to a capacity assessment? How do you deal with the increasing policy decision of the family doctor to “not get involved”? How do you deal with changes in circumstances? All of this emphasizes the importance of educating our clients and being creative in planning.
Lesson Learned: The time to deal with these questions is now, rather than when the grantor is losing capacity. With proper planning (not partial planning) potential confusion and headaches can be avoided.
About Jasmine Sweatman B.A. (Hons.), J.D., LL.M., TEP, C.S., EPC, CPCA and Bethany Anderson B.A., LL.B
Jasmine Sweatman is Managing Partner at Sweatman Law, a full-service firm providing customized legal services in the areas of resolution of disputes involving estates, trusts, and powers of attorney; wills planning for wealth preservation and families with special needs; the administration of estates and trusts; guardianships and capacity planning; family, divorce and collaborative law; charity and not-for-profit law; corporate law; and real estate.
Bethany Anderson is an associate at Sweatman Law, a full-service firm providing customized legal services in the areas of resolution of disputes involving estates, trusts, and powers of attorney; planning for wealth preservation, families with special needs; the administration of estates, trusts, and guardianships; family, divorce and collaborative law; charity and not-for-profit law; corporate law; and real estate.
At Sweatman Law all members of the firm understand that dealing with estate and trust issues can be emotionally difficult and is for most of our clients the first time dealing with lawyers and the process. We are particularly sensitive to and aim to achieve the best and right approach to your matter with the objective of getting that solution to maximize the result as effectively and efficiently as possible. Out of court alternatives and practical solutions are always considered. We listen.
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