05/09/2015 09:34 EDT | Updated 05/09/2016 05:59 EDT

Plan Ahead: When a Power of Attorney Is Challenged

Part I of this series discussed the litigation steps and materials to be filed when dealing with power of attorney litigation. Part II now takes focus on the legal aspects surrounding this litigation.

Where a power of attorney is challenged, a person will often need to be appointed by the court to take over the management of the incapable person's property or personal care.  Most commonly, these cases come before a judge in the form of applications for "guardianship," which is the appointment of an individual by the courts to make decisions on behalf of an incapable person with respect to his or her property or personal care.

The appointment of a guardian has dramatic consequences on the rights of the incapable person. It removes from the affected individual the right to make decisions about caring for themselves and their property and places these rights, and the associated responsibilities, with another. It is often an emotional process for everyone involved. Throughout the decision-making process, the potentially incapable individual is alive and may feel that his or her independence and freedom is being threatened. It may also cause tension between family members who disagree about how best to care for their loved one, even when everyone has the person's best interests at heart. 

Ontario’s governing statute, the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the SDA), outlines the procedural steps involved when applying to court for the purpose of obtaining an appointment as guardian of property, guardian of person or both.

The SDA is helpful in providing specific parameters for determining capacity to aid judges in making such sensitive decisions. The determination of capacity is very rarely a straightforward exercise. Each person is different and reacts to cognitive impairment in their own way. Families are also unique and the struggles in one family may be dramatically different from another. While management of finances can cause a significant amount of upset among family members, personal care decisions can be even more contentious. For example, siblings may disagree as to whether a parent should continue to reside at home or move into a facility. End of life decisions can be especially controversial. 

Incapacity is a legal determination and often a court is assisted in its analysis by capacity assessors or doctors. The exercise is especially tricky for judges who are generally outside of their comfort zones in this legal-medical sphere. The process involves tough decisions being made in highly dramatic, emotional and controversial situations. Judges’ decisions have profound impacts on an individual’s liberties and can extend to having an impact on family dynamics. For judges, these issues may hit home as well. Judges tend to be of an age where these questions are arising in the lives of their parents or family members.  As well, as they approach retirement, they may be dealing with similar issues in planning for themselves, should they ever develop issues affecting their capacity. 

It is often wise to do everything you can to avoid bringing these matters to court. Litigation is expensive and emotionally draining. Avoiding it through the use of alternate methods is recommended. Many of these disputes can be defused before they begin through communication. If issues still cannot be resolved, the input of caregivers and doctors can also be helpful. The assistance of a skilled mediator before the onset of litigation can help the family come to a workable arrangement as well. Being organized and coming up with a plan is helpful to all parties involved. By coming to a decision through an amicable process, families are spared the time, expense and exhaustion of litigation. More importantly, the affected person is spared the stress of a drawn out fight over his or her future. 

*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.


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