Power of Attorney and Capacity Litigation
When a person’s mental capacity to make his or her own decisions diminishes, often due to aging, illness, or injury, friends or family members may step in to assist. In some cases, “assistance” can mean different things to different
friends and family members resulting in disagreements or even litigation. In other cases, the “assistance” is more blatantly an abuse or misuse of the powers granted to the friend or family member under a power of attorney and this abuse
or misuse can result in disputes and litigation. These disputes can be focused on the management of the incapable person’s money or the decisions about his or her personal care, or both.
The Substitute Decisions Act, 1992 is the legislation that governs power of attorney and capacity issues. The law with respect to powers of attorney and capacity is constantly being refined and interpreted through an ever-growing body of case law as the litigation regarding power of attorney and capacity issues increases with a rising percentage of older persons in the Canadian population.
In almost all of these cases, the emotions and dynamics among the parties are highly charged and the stakes are incredibly high as they usually involve the fundamental well-being of a loved one. Our lawyers are known for their sensitive and practical
approach to these emotionally charged situations. Combining our legal expertise with great attention to detail and an understanding of what is important to the client, we help our clients build their strongest case while encouraging and assisting
them to find creative and practical solutions to resolve disputes. Our lawyers have excellent courtroom skills, but they are also very effective at helping clients achieve resolutions in non-litigious ways, such as through facilitated mediations or
negotiations with opposing parties and their lawyers.
Many clients don’t know whether they should proceed with litigation or not, whether it is the best option, or whether they can afford it. If you come in for a consultation with us, we will give you an honest opinion, that is based on your case,
circumstances, needs and means. If we think that litigation is not the best option for you and your family, we will not push you in that direction just to get the work out of you. If you do decide to litigate though, we will advocate for you
with a high degree of skill, expertise and empathy.
Power of attorney and capacity litigation can include: