Last week I met with Sue (not her real name) in my law office in the Kanata-Stittsville area of Ottawa. I first worked with Sue when she was acting as executor of her mother’s estate. While living in Alberta, her father had signed a Power of Attorney for Property naming Sue. Following a stroke, he was moved to Ottawa to be closer to family. Sue explained that due to the stroke, he is no longer mentally capable. The financial institution where her father’s investments are held refuses to recognize the Power of Attorney signed in Alberta. They say that since it was signed outside of Ontario, they do not consider it valid.
I explained to Sue that if her father was living in Alberta at the time that he signed the Power of Attorney and if the signing was carried out in a way that fully complied with the laws of Alberta, the document should be valid in Ontario.
Another issue to consider is whether the Power of Attorney document is meant to be effective while her father is mentally incapable. ‘Continuing’ or ‘enduring’ are some of the terms used to indicate that a Power of Attorney for Property document continues to be valid during the person’s mental incapacity.
I explained that it may also be necessary to have her father assessed as to his mental capacity. For example, some Power of Attorney documents require that the person must be mentally incapable for the document to be effective and that it cannot be used until there is proof of mental incapacity.
I advised Sue that the next step would be to review her father’s Power of Attorney and, if appropriate, prepare an opinion letter addressed to the bank confirming its validity.
If you or someone for whom you are acting has signed a Power of Attorney somewhere outside Ontario and you have questions about its validity, email (firstname.lastname@example.org) or call (613.836.9915) our office to make an appointment to meet with me.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.