In my ALLABOUTESTATES blogs, I have been writing about unanticipated consequences of appointing a power of attorney (POA) for property as per the Ontario Substitute Decisions Act[i] (SDA). Despite the apparent benefits for seniors to have a POA for property, nonetheless unanticipated problems include;

1. Mistaken assumptions by both grantors and appointed attorneys that a signed POA for property that is effective immediately is supposedly “only a backup plan” for declared incapacity to avoid statutory guardianship by the Office of the Public Guardian and Trustee.
2. Bank employees erroneously refusing appointed attorneys’ requests to manage the grantor’s finances, mistakenly assuming they can only act as “if needed substitute decision makers” in the face of client incapacity.
3. Elder financial abuse by unscrupulous attorneys for property.
4. With springing or postponed POAs for property; either an obstruction in obtaining a declaration of incapacity under the SDA, or the appointed attorney unduly influencing an unfair declaration of incapacity, and/or a potential forfeit of the right of appeal of the finding of incapacity when made by a doctor.

Another unanticipated consequence I have seen several times now is legal conflict within the family precipitated by conflict over the POA for property. The scenario typically has been where there is more than one appointed attorney and the attorneys are a combination of an adult child and a spouse or partner who cannot agree on management of property of the grantor who has become incapable to manage his/her own property. The adult child may more likely be from a prior marriage but not necessarily. Appointments of this type essentially create a new relationship between the appointed attorneys, a ‘marriage’ of fiduciary responsibility that neither one may wish to be a part of but feel compelled to do so. Although the grantor may have felt that appointing more than one attorney would be a safeguard against potential abuse, he or she may not have anticipated the conflict within the family such an arrangement may result in. Similar conflicts may arise when there is only one appointed attorney who is an adult child of an incapable person who is still married. The attorney for property now becomes essentially an added partner of the marriage, rather than an adult child of the grantor, thus potentially altering the dynamics of family relationships. Conflict may arise that can result in accusations of abuse and potential legal consequences resulting in costly applications for guardianship of the grantor by either the spouse or the adult child.

According to Jewish tradition, the Talmud (oral interpretation of the Torah) teaches that marriages are matches made in Heaven, described in Hebrew as “bashert,” a word meaning fate or destiny. The traditional view is that you cannot know who your bashert is, but once you get married, the person you married is by definition your bashert. However, adding an attorney for property to the marriage is not something I believe Heaven intended!

[i] Substitute Decisions Act, 1992, SO 1992, c 30, <https://canlii.ca/t/l0gb> retrieved on 2015-07-16