Validity of Powers of Attorney
Powers of Attorney for Property and Personal Care grants the attorney the authority to make important decisions with respect to the management of the donor’s property and personal care. It can be a tool used by the elderly to protect their financial and / or personal care interests when they become incapable of making decisions.
However, issues could arise with respect to the validity of a power of attorney. Contesting the validity of a power of attorney requires bringing a proceeding before the court for a declaration that the power of attorney is invalid. Generally, the basis for contesting a power of attorney are:
- The undue influence exerted by another individual to appoint a power of attorney;
- The lack of mental capacity of the donor at the time of the grant of the power of attorney; and
- Problems with the will document itself, such as improper witnessing, lack of signature, other formalities not observed.
If you are an attorney who is faced by someone questioning the validity of a power of attorney or if you are an individual concerned with the validity of a power of attorney granted by someone close to you, we encourage you to contact our office to set up a consultation.
Abuse of Power of Attorney
The attorney named in the power of attorney has a legal duty to follow the direction of the donor of the power of attorney, to act in the best interest of the donor or to act as a fiduciary if the donor is incapable of making their own decisions. Unfortunately, this is not always the case. The unscrupulous use of a power attorney is a growing concern.
Abuse of a power of attorney can include making a decision that is not in the donor’s best interest; using the donor’s money and assets in a manner inconsistent with their fiduciary obligations including for the attorney’s benefit; using the donor’s money and property in a manner that not in the donor’s best interest; mixing of funds or treating the donor’s money as their own; and making unauthorized or questionable investment decisions.
If you are an individual concerned with the propriety of the actions of an attorney or an attorney against whom abuse has been alleged or whose actions have been questioned, we encourage you to contact our office to set up a consultation.
Removing or replacing power of attorneys
The choice of a trustee to administer a trust, or to act as an executor for an estate, or as a power of attorney is an important decision. These roles come with specific responsibilities and obligations. However, at times, these individuals may lack the ability to fulfil their responsibilities and obligations or may wilfully be acting in a manner contrary to their responsibilities and obligations.
In such a situation, one of the remedies available for a concerned party is to seek an order from the court removing or replacing the trustee, executor, or power of attorney. The removal of a trustee has generally been treated as an extraordinary remedy.
If you are a trustee or an executor whose actions are being challenged by beneficiaries or other interested parties or an individual who believes that a trustee or executor is not fulfilling their obligations and need to be removed, we suggest you contact our office to set up a consultation to discuss your options.
Passing of Accounts for Attorneys
A passing of accounts is the presentation of formal accounts by the trustee to the beneficiaries and the court which are either approved in the form presented, or amended by a court order and passed in a different form, or not passed due to the fact that for some reason the court is not satisfied with the accounts or some aspect of the administration of the estate.
Upon the passing of the accounts, the estate trustee is relieved of any further accounting for the relevant period except for allegations of fraud or mistake.
If you are a trustee seeking to pass accounts, we ask you to contact our office to set up a consultation to discuss the process for the passing of accounts.
As a beneficiary under a will or a trust, you also have the right to request that a trustee pass accounts. If a trustee does not voluntarily take steps to pass accounts, the beneficiary may seek a court order requiring the trustee to pass accounts. If you are a beneficiary who wants to obtain more information about the administration of a trust or estate, we ask that you contact our office to discuss how you may enforce your rights.
Guardianship Applications and Capacity Issues
At times, illness or aging can rob individuals of the capability to make decisions as to their personal care or property. Where there is no power of attorney in place, a guardian may need to be appointed to manage the affairs of a person who is considered to be mentally incapable of making decisions for themselves.
If you are concerned with the ability of someone close to you make decisions with respect to their personal care or the management of property and believe that a guardian needs to be appointed in order to assist them in this regard, contact our office to set up a consultation to discuss bringing a guardianship application and to explore other legal options you may have.