Question
A few years ago while living in British Columbia, my mother signed a Power of Attorney in which she named me to look after her financial affairs if she could not do so. She recently moved to Ontario and then had a stroke. She is now mentally incapable. Her doctor says it is unlikely that she will recover her mental capacity. My mother’s care costs have gone up and her funds are running low. I need to cash in some of her investments to pay for her care but my mother’s bank refuses to recognize the Power of Attorney document that my mother signed in British Columbia. They say that since it was signed outside of Ontario, they do not consider it valid. What do I do?
Answer
If your mother was living in British Columbia at the time that she signed the Power of Attorney and if the signing of that document was carried out in a way that fully complied with the laws of British Columbia, it should be valid in Ontario as set out in section 85(1) of Ontario’ s Substitute Decisions Act.
There are other factors to be considered as well such as whether or not the Power of Attorney document is intended to be effective during a period of the time when your mother is mentally incapable. Different jurisdictions use a variety of terms such as ‘continuing’ or ‘enduring’ to mean that the document will be valid while the person is mentally incapable. Given your mother’s condition, it is important that the document be considered valid despite her incapacity.
Depending upon what the Power of Attorney says, it may also be necessary to have your mother assessed as to her mental capacity. For example, some Power of Attorney documents indicate that the person must be mentally incapable before the document is effective and that it cannot be used until there is proof of mental incapacity.
If you think that the bank should not refuse to recognize the Power of Attorney and if you are unable to convince the bank otherwise, meet with a lawyer who is familiar with Ontario law regarding Powers of Attorney and their validity. Ask the lawyer to review your mother’s Power of Attorney and, if appropriate, prepare an opinion letter addressed to the bank to confirm the validity of the document which was signed in British Columbia. It may be necessary for the lawyer to research specific legal issues before preparing the letter. The letter should also request that the bank immediately recognize the authority granted by the Power of Attorney. Hopefully, the written legal opinion of a lawyer will solve the problem. If not, it may be necessary to seek a Court order confirming the validity of the Power of Attorney document and ordering the bank to accept the Power of Attorney as valid and to act upon your instructions.
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Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.