It can be frustrating when laws are made or reformed without meaningful consultations with those who are actually affected. We have all thought at some point, the politicians who made this law have no idea what X is actually about!
A major review[1] of the laws related to legal capacity, decision-making and guardianship in Ontario was just wrapped up by the Law Commission of Ontario (“LCO”) and, thankfully, it is abundantly clear that the final 467 page report is based on hearing from people on the ground – patients, families, health professionals, lawyers, ethicists, advocates, and many others.
They conducted focus groups, performed extensive research and explored models from other provinces and countries. In total, 58 recommendations were made. Hopefully some of these thoughtful recommendations are transitioned by our lawmakers into action. This blog reviews – and strongly endorses – two of those recommendations relating to powers of attorney.
Recommendation 1: A mandatory, standard-form Statement of Commitment to be signed by persons accepting an appointment as an attorney, prior to acting for the first time under the appointment
One of the most complicated, heartbreaking and challenges areas of Family Health Law™ is dealing with power of attorney disputes. This typically arises when there is conflict in a family, multiple versions of powers of attorney, suspicions of (or actual) greed, and an older parent/spouse with diminished capacity to make decisions about health care and/or property. Often health care and other service providers are caught in the middle.
Sometimes it is very difficult to know whether a power of attorney has been activated. We have seen clients access a parent’s money with good intentions but no legal authority. In the alternative, sometimes a person should start taking control of finances but prefers to let the incapable person “control” the reigns because they can operate in the shadows and avoid responsibility (“it was mom’s decision; this is what she wanted, etc…”).
It can become very complicated.
The LCO has made a very simple suggestion: that a person sign a Statement of Commitment prior to acting as an attorney. While this wouldn’t solve all problems relating to powers of attorney, it would bring significant clarity to the question of whether or not a power of attorney has been activated. If it has been improperly activated (e.g. a person assumes responsibility prematurely), it could and should still be addressed. But at least it would be increasingly clear who is or was responsible at a given time.
Recommendation 2: The delivery of Notices of Attorney Acting at the time that the attorney first begins to act: these would be required to be delivered to the grantor, the spouse, any previous attorney and any monitor appointed, as well as for any other persons identified in the POA instrument
By way of background, the LCO stated that:
One of the repeated concerns voiced about POAs is the lack of transparency associated with these documents. It may be difficult to determine whether a POA exists, whether it is valid, and whether it should be in operation. This lack of transparency may be connected to risks of abuse…
The LCO heard troubling stories from some family members who had suspected that their loved one was being abused, exploited or neglected by a person claiming to hold a POA, but who had been unable to force that person to provide a copy of the POA to verify its contents without resort to expensive legal steps. They felt that it should be much easier to verify whether a POA actually existed and the scope of its authority, without the necessity to take legal action.
The recommendation that people notify certain individuals before they begin to act as attorney could save concerned families legal fees, time and the stress of going to court. It would also make it easier to protect people from abuse.
Once a power of attorney is produced several steps can follow. A family member might feel persuaded that the document was drafted by a lawyer, witnessed properly, and ultimately executed in a manner that was legal and appropriate. Or, they might notice that the document was signed at a time the person was clearly incapable, and then take steps to challenge it. Either way, requiring production of a power of attorney to a few select individuals can be a good thing.
Of course, some people do not have a spouse or previous attorney, and if they are manipulated into making a power of attorney there might not be a monitor named. It would therefore be beneficial to require reporting to a government entity as well (although that would likely require significant government resources).
What can be done in the mean time?
Power of attorney abuse is all too common. But there is no need to wait for legal form. Steps can be taken today to reduce the risk of abuse and conflict.
- Powers of Attorney should, ideally, be drafted by lawyers. One of the most common allegations of abuse involves powers of attorney that were forged or signed due to incapacity or undue influence. When powers of attorney are drafted by lawyers and witnessed in their offices, there is a greater chance the document was created and signed by a person who was autonomous and capable. This also protects the person appointed to act as attorney because they are in a better position to defend the validity of the power of attorney.
- Require a Statement of Commitment and Notice of Attorney in your power of attorney. Who says the law has to change for these things to be included? There is nothing stopping a person from stating in a power of attorney that they want the person appointed to sign a document prior to acting and to notify certain individuals.
- Require transparency. We have drafted powers of attorneys in which clients have mandated transparency, such as stating that adult children who are not appointed as attorneys are nonetheless entitled to access certain documents or be consulted about end-of-life decisions.
- Appoint more than one attorney. One of the best checks and balances is to appoint two people to act (listen to this podcast for benefits and pitfalls of appointing multiple attorneys). A person contemplating abusive actions may think twice when another attorney is in the picture, or may be caught in their tracks by the other attorney.
In closing, we commend the LCO for their exhaustive efforts taking the time to acknowledge how confusing and challenging this area of the law can be, identifying many of the problems, and proposing practical and common sense strategies for change.
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