Canada: When Is A Grantor Capable Of Giving A Power Of Attorney? Canadian Tax & Estate Lawyer Analysis

Last Updated: September 13 2017
Article by David Rotfleisch

Introduction: What Is a Power of Attorney?

A power of attorney ("POA") is a legal document giving someone else the authority to act on your behalf. The person who gives another this decision-making authority is called the grantor. The person empowered to make decisions on behalf of the granter is called the attorney.

Canada generally recognizes two sorts of powers of attorney relating to property or finances: a general power of attorney and a continuing or enduring power of attorney. Both authorize an attorney to manage your finances or your property on your behalf. But only a continuing power of attorney persists if you become mentally incapable of managing your own affairs. Also, neither POA permits an attorney to do any of the following: make your will, change your existing will, change a beneficiary under your life-insurance policy, or give a new POA to another attorney on your behalf.

For instance, with a general power of attorney, you may authorize your attorney to sell your property or invest your money on your behalf. The attorney, however, will lose his or her authority under the POA if you become mentally incapable. In contrast, using a continuing power of attorney, you may authorize your attorney to deal with your property in the event that you become mentally incapable. That is, with a continuing power of attorney, you can stipulate that your incapacity will trigger the attorney's authority to act on your behalf.

Furthermore, Ontario was one of the first Canadian jurisdictions to recognize apower of attorney for personal care. Many other Canadian jurisdictions have yet to recognize this form of POA. As its name suggests, the POA for personal care authorizes the named attorney to make, on the grantor's behalf, decisions concerning the grantor's personal care if the grantor becomes incapable of doing so personally.

This article discusses the requisite mental capacity that a grantor must exhibit in order to execute a valid power of attorney.

The Notion of Capacity in the Substitute Decisions Act

In Ontario, the Substitute Decisions Act, 1992 ("SDA") governs the issue of capacity for both a POA for property and POA for personal care. The terms "capable" and "capacity" refer to mental capability and capacity.

The Substitute Decisions Act presumes that a person has the requisite capacity to grant either a POA for property or a POA for personal care once he or she reaches a particular age: 16 years of age for a POA for personal care and 18 years of age for a POA for property.

But the Substitute Decisions Act limits the presumption of capacity: one cannot rely on the presumption if he or she "has reasonable grounds to believe that the other person is incapable of entering the contract or of giving or refusing consent." For instance, if a person grants a POA under suspicious circumstances—such as those suggesting undue influence—the presumption of capacity does not operate. Instead, the grantee or attorney under the POA bears the burden to show the grantor's capacity.

The notion of capacity is relevant to two separate issues. The first is whether a valid POA exists; the second is the circumstances empowering an attorney to act under a valid POA. TheSubstitute Decisions Act expressly keeps separate the capacity for validity and the capacity for attorney authorization.

The first issue concerns the capacity required for a person to grant or revoke a POA. That is, a person cannot execute a valid POA or revoke a prior POA without sufficient mental capacity. SDA subsection 8(1) governs capacity to give a POA for property while subsection 47(1) governs capacity to give a POA for personal care. This analysis examinesboth of these provisions in greater detail below.

The second issue involving capacity concerns the level and nature of incapacity of the grantor required to authorize an attorney's invocation of a POA. For instance, a POA for property may come into effect when an assessor informs the attorney that the grantor is incapable of managing property. Likewise, a POA for personal care may empower the named attorney to make decisions about the grantor's personal care when the grantor is incapable of personal care.

The rest of this article focuses on solely on the first issue—that is, the capacity required for a grantor to execute a valid POA.

The Ontario Test for Capacity to Grant a Valid Power of Attorney for Property

Recall, powers of attorney for property come in two forms: the general power of attorney for property and the continuing power of attorney for property. The Substitute Decisions Act only governs capacity pertaining to a continuing power of attorney. For instance, subsection 8(1) only speaks to capacity to give a "continuing power of attorney."

Subsection 9(1) of the Substitute Decisions Act speaks to the relationship between the grantor's capacity and the POA's validity. In particular, the subsection says that a POA for property is valid "if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property."

As mentioned, the phrase incapable of managing property relates to the event triggering an attorney's authority under a valid POA. So, subsection 9(1) clarifies that the grantor's being capable of giving a POA—not the grantor's capability of managing property—determines whether the POA is valid.

Subsection 8(1) lists the conditions establishing when a grantor is capable of giving a POA for property. In particular, under subsection 8(1), "[a] person is capable of giving a [POA for property] if he or she:

  • knows what kind of property he or she has and its approximate value;
  • is aware of obligations owed to his or her dependants;
  • knows that the attorney will be able to do on the person's behalf anything in respect of property that the person could do if capable,except make a will, subject to the conditions and restrictions set out in the power of attorney;
  • knows that the attorney must account for his or her dealings with the person's property;
  • knows that he or she may, if capable, revoke the continuing power of attorney;
  • appreciates that unless the attorney manages the property prudently its value may decline; and
  • appreciates the possibility that the attorney could misuse the authority given to him or her."

The language of subsection 8(1)—namely, the provision's use of if as opposed to, say, only if and its use of a conjunction as opposed to a disjunction—suggests that all of the conditions listed, while jointly sufficient to ensure capacity, are not all necessary for capacity. In other words, only a subset of the listed conditions may be required for a finding of capacity.

In addition, the power-of-attorney rules adopted by other provinces provide further support that the Ontario rules intend to provide sufficient conditions. In other words, the Ontario legislation provides conditions that, if present, ensure that the grantor has capacity; it does not provide conditions which, if absent, entail incapacity. For instance, in contrast to Ontario's Substitute Decisions Act, British Columbia's Power of Attorney Act clearly sets out the minimum capacity required for a valid POA for property. In particular, subsection 12(1) of the Power of Attorney Act says that an adult may make a POA for property "unless the adult is incapable of understanding the nature and consequences of the proposed [POA for property]." Subsection 12(2) defines when an adult is "incapable of understanding the nature and consequences" of the proposed POA:

An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:

  • the property the adult has and its approximate value;
  • the obligations the adult owes to his or her dependants;
  • that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;
  • that, unless the attorney manages the adult's business and property prudently, their value may decline;
  • that the attorney might misuse the attorney's authority;
  • that the adult may, if capable, revoke the enduring power of attorney;
  • any other prescribed matter.

Granted, subsection 12(2) of BC's Power of Attorney Act lists, essentially, the identical conditions appearing in 8(1) of Ontario's SDA. Superficially, one might think that this suggests that subsection 8(1) of the SDA lists both sufficient and—implicitly—necessary conditions for capacity.

But two points are noteworthy. First, the BC Act expressly treats the listed conditions as necessary for a person to grant a valid POA for property: Subsection 12(1) excludes any adult who satisfies 12(2) from the class of persons who may execute a valid POA for property. So, under the Power of Attorney Act, it is necessary that a person not satisfy subsection 12(2) in order to execute a valid POA for property—in other words, a person must be capable of understanding all of the points listed.

Second, subsection 12(2) of the BC Act says that an adult satisfies that subsection "if the adult cannot understand all of the following." In other words, while failing to meet all of the listed conditions suffices for a finding of incapacity, failing to meet only one or two of these conditions does not automatically render a person incapable.

Comparing the Substitute Decisions Act with the Power of Attorney Act suggests that the Ontario legislature only intended to identify conditions that, if jointly satisfied, rendered a person legally capable of executing a valid POA. If Ontario had intended for the conditions in subsection 8(1) of the SDA to function as necessary conditions, the legislature—presumably—would have used language similar to that appearing in subsection 12(1) of BC's Power of Attorney Act. Still, as discussed below, Ontario courts have yet to provide a firm statement on this issue.

In sum, a grantor may still be able to execute a valid POA for property even if that grantor fails to satisfy some of the conditions listed in SDA subsection 8(1).

The Ontario Test for Capacity to Grant a Valid Power of Attorney for Personal Care

Subsection 47(2) of the Substitute Decisions Act deals with the relationship between the grantor's capacity and the POA's validity. In particular, the subsection says that a POA for personal care is valid "if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care."

The phrase incapable of personal care relates to the event triggering an attorney's authority under a valid POA. So, subsection 47(2) clarifies that the grantor's being capable of givinga POA—not the grantor's capability of personal care—determines whether the POA is valid.

Subsection 47(1) lists the conditions establishing when a grantor is capable of giving a POA for personal care. In particular, under subsection 47(1), "[a] person is capable of giving a [POA for personal care] if the person

  • has the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; and
  • appreciates that the person may need to have the proposed attorney make decisions for the person."

Like subsection 8(1), the language of subsection 47(2)—namely, the provision's use of if as opposed to, say, only if and its use of a conjunction as opposed to a disjunction—suggests that the conditions listed, while jointly sufficient to ensure capacity, are not necessary for capacity.

In sum, based on the language appearing in subsection 47(2), a grantor may still be able to execute a valid POA for personal care even if that grantor fails to satisfy one of the conditions listed in the subsection.

Moreover, some courts propose that the test for capacity to execute a valid POA for personal care is less onerous than that for capacity to execute a valid POA for property:

There are different tests for the capacity to make a Power of Attorney for personal care and for property. A person may be incapable of managing property but capable of making a Power of Attorney for Property. With respect to Powers of Attorney for Personal Care the capacity threshold is much lower than for Power of Attorney for Property which is lower than the capacity required to execute a will. (Penny v Bolen, 2008 CanLII 48145 (ONSC) at para 19).

Applying the Capacity Tests: Case Law

Despite the language of the Substitute Decisions Act, Ontario courts have yet to provide a firm statement as to whether subsections 8(1) and 47(2) list necessary or sufficient conditions for capacity. In fact, when faced with this question in Abrams v Abrams, Ontario's Divisional Court seemed hesitant to provide a firm answer in relation to subsection 8(1). Still, the court decided Abrams on grounds other than subsection 8(1). So, the court's hesitance may only speak to its unwillingness to decide upon extraneous or obiter issues.

In practice, however, courts do not treat subsections 8(1) and 47(2) as listing necessary conditions for capacity to execute a valid POA. For instance, in three cases, Vanier v Vanier, Knox v Burton,and Giovanna Nicoletti v Bruna Nicoletti, Ontario's Superior Court of Justice decided that a grantor possessed the capacity to execute a valid POA for property. Yet, in all three decisions, the court neither examined whether the grantor met the conditions listed in subsections 8(1) or 47(2) nor did it ask whether the capacity assessor's report examined the listed conditions. Presumably, if the court had interpreted these provisions as listing necessary conditions, its reasoning would have included an analysis of whether all the conditions were present.

In addition, barring evidence of undue influence or suspicious circumstances, courts prove willing to find that a grantor possesses the capacity to form a valid POA even in the face of cognitive decline. Indeed, under the common law, the capacity threshold for a valid POA is lower than that required for a valid will.

In other words, it seems that the presumption of capacity contained in section 2 of the SDA will prevail over even the most telling signs of mental decline. For instance, in Giovanna Nicoletta, the court found that an 88-year-old grantor possessed the capacity to execute a valid POA. The court seemed willing to ignore a geriatric doctor's report, which spoke to the grantor's cognitive decline and indicated that the grantor repeated "the same phrases of the same stories over and over again." Instead, the court relied on the absence of undue influence and a capacity assessor's opinion of the grantor's capacity.

Similarly, in Knox v Burton, the court held that the grantor possessed sufficient capacity to execute a valid POA for property. Yet the 80-year-old grantor complained of memory loss, which interfered with her daily functioning, and one of three capacity assessors found the grantor incapable of giving a valid POA. The court, however, found this evidence inadequate to rebut the SDA's presumption of capacity. In addition, the court seemed persuaded by testimony speaking to the low threshold needed to satisfy the test in section 8 of the SDA.

In Dubois v Wilcosh, Manitoba's Court of Queen's Bench found that a grantor had capacity to execute a valid POA for property despite exhibiting early-state Alzheimer's, precluding the grantor from properly managing his assets without assistance. The grantor's awareness of the significance attached to the POA rendered him capable of validly executing the document. In particular, the grantor previously executed a POA for property—and modified the POA as he felt that his circumstances required. On this basis, the court concluded that the grantor was aware of the authority that his new POA conferred upon the named attorney.

Notably, in the cases where courts find a grantor incapable of executing a valid POA, the grantors exhibit similar mental decline as displayed in cases where courts find grantors capable. What seems to distinguish the capable grantors from the incapable grantors is evidence of undue influence or suspicious circumstances, which oust the SDA's presumption of capacity.

For instance, in Bishop v Bishop, the court held that a grantor was incapable of giving a valid POA. The grantor seemingly exhibited the same symptoms of memory loss as the grantor in Giovanna Nicoletta. In particular, a geriatric specialist observed that the 90-year-old grantor "clearly does not retain the ability to remember her actions for an acceptable period of time." But, unlike Giovanna Nicoletta—indeed, unlike any of the three cases discussed above—in Bishop, the court discovered evidence of suspicious circumstances surrounding the impugned POA. Namely, the grantor signed the impugned POA during a period of family conflict between the grantor's children. Also, the impugned POA, which named the grantor's son as sole attorney, would replace a prior POA, which named the grantors two daughters as joint attorneys. Finally, the grantor's son had her sign the impugned POA in his home without affording her a lawyer or asking if she wished to speak with a lawyer.

In Nguyen-Crawford v. Nguyen, the court held that a POA for property was invalid solely on the basis of undue influence. Although the grantor's cognitive ability declined significantly in 2008 after suffering a stroke, this case concerned a POA that the grantor executed in 1998, long before her health declined. The court found the 1998 POA was invalid because undue influence rendered the grantor incapable. The following findings led to the court's decision: First, of Vietnamese decent, the grantor possessed very limited understanding of English. Second, the POA documents were written entirely in English and not explained to the grantor when drafted. Third, the grantor was dependent on her daughter, the sole attorney named in the impugned POA. Fourth, grantor's daughter provided the grantor with the only translation of the POA, which conferred extensive power on the daughter to act on the grantor's behalf. Finally, the daughter and her husband used the grantor's funds as if they were their own.

In sum, courts seem generally willing to defer to the SDA's presumption of capacity, even in the face of the grantor's cognitive decline, unless evidence convinces the court that the grantor is under undue influence.

Tax Tips

Typically, agency law governs the relationship between an empowered attorney and an incapable grantor. This means that the grantor may acquire legal obligations as a result of the attorney's actions.

In particular, the attorney's selling or gifting the grantor's property may expose the grantor to income-tax liability. For instance, if, on behalf of the grantor, the attorney gifts the grantor's property to the grantor's child or spouse, Canada's Income Tax Act deems the grantor to have disposed of that property at its fair market value. If a capital gain results, the grantor may incur tax liability.

In addition, such transfers may trigger various attribution rules found in the Canadian Income Tax Act. Generally, these rules apply to transfers between related parties. If one of these rules applies, the Income Tax Act deems the property's transferor to have earned the income that would normally be that of the property's recipient. An authorized attorney may inadvertently trigger one of these rules—thus drawing unwanted tax liability for the grantor—when transferring the grantor's property.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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