While a power of attorney (also known as a POA) can vary depending on where you live in Canada, in general, a POA is a legal document wherein you (the “grantor” or “principal”) give your chosen representative (your “attorney” or “agent”) the right to make decisions on your behalf. A POA is someone you trust like a family member or good friend and is typically used when you may not be able to manage your own affairs due to illness, absence, or some other reason.
Who Can Override a Power of Attorney?
If the grantor is of sound mind and body, they can override or change a POA at any time. However, there are also cases where a next of kin or other concerned party can reach out to the courts to overturn a power of attorney. If a judge concludes that the document was not correctly executed (such as not being properly witnessed and signed), a person is abusing their agent authority, or if an agent was appointed under duress, the judge could override a power of attorney. In Ontario, healthcare providers or long-term care authorities can apply to the Consent and Capacity Board if they think the Attorney isn't making proper decisions. The Board can direct the Attorney to make proper decisions, and the court has the authority to remove the Attorney.
Reasons to Override a Power of Attorney
There are a variety of reasons that someone may want to invalidate a power of attorney. Note that this list is not comprehensive, and a lawyer should be contacted to discuss any unique or special circumstances. Here are some examples:
- Grantor Changes their Mind: If the grantor's wishes change after the power of attorney is executed, they might want to override or amend the document to reflect their current preferences.
- The Grantor is Not of Sound Mind: If the grantor was not mentally competent or lacked the capacity to understand the implications of the power of attorney at the time it was done, concerned parties might seek to challenge the validity of the POA.
- Duress: If there is a possibility that the grantor was in some way forced or coerced into creating the power of attorney.
- Breach of Duty: If the attorney/agent is not acting with the principal’s wishes or best interests in mind, it might be necessary to override the power of attorney.
- Misconduct: If the agent becomes incapacitated, behaves irresponsibly, or fails to fulfill their duties, it could prompt a someone to invalidate the POA.
- Conflict of Interest: If the agent's interests conflict with the grantor's best interests, it could lead to concerns about the agent's capacity to make proper decisions.
- Errors: If the power of attorney document was not properly signed or witnessed, or contains errors, it could be deemed invalid.
- Change in Circumstances: Changes such as the grantor's regaining of mental capacity or a substantial change in the agent's circumstances might necessitate an override of the power of attorney.
- Concerns about Agent's Competence: If the agent lacks the necessary skills or knowledge to manage the grantor's affairs effectively, overturning the power of attorney might be an option.
Remember that legal proceedings to override a power of attorney can be complex and may involve court intervention. To address any of these situations, or if you face unique circumstances, it's crucial to seek guidance from a qualified legal professional who can provide tailored advice and navigate the specific laws in your jurisdiction.
How to Override a Power of Attorney in Canada?
If you, the grantor, want to change your power of attorney, if you are of sound mind, you can do so at any time, and you don’t even need to provide a reason to justify your decision to go with a different agent. If you have the mental capacity to revoke your POA, you should create a new POA first in order to appoint a new attorney and still have a POA in place. Otherwise, a revocation document may leave you with no POA in place. To revoke a power of attorney, you would simply need to:
- Prepare a Revocation Document: Create a document that clearly states your intent to cancel your existing power of attorney. Include details like your full legal name, the agent's name, the date of the original POA, and a statement that you are revoking the agent's authority.
- Get Witnesses: Sign and date the revocation document in the presence of a two witness. Some provinces might have slightly different witnessing requirements, so consult local regulations or seek legal advice from a professional.
- Deliver the Revocation: Provide the revocation document to the agent and any relevant third parties, including financial institutions or healthcare providers, who had access to your original POA.
- Select a New Agent: If you feel it’s necessary, you can then select a new agent.
Overriding a power of attorney is a much more complicated process if someone other than the grantor wants to invalidate a POA. Here’s a step-by-step guide for the process of overriding a power of attorney in Canada.
Before trying to invalidate a power of attorney, it’s vital to keep in mind that it can be a tough, uphill battle requiring a lot of time and potentially expensive legal costs. It could also irrevocably affect family dynamics and your relationship with the grantor. It’s wise to seek legal advice and work with a lawyer who has expertise in estate law. The general steps you’ll likely have to follow, include:
- Consult a Lawyer: Before doing anything drastic, it’s a good idea to speak with a lawyer who specializes in estate law. They’ll provide advice that applies to your specific situation, explain the legal options available, and guide you through the process.
- Gather Evidence: Compile evidence that supports your case for overriding the power of attorney. This could include documents like medical records, witness statements or financial documents.
- Consult the Grantor: Before you begin any legal proceedings, you will likely want to reach out to the grantor and explain your concerns about the POA. Request that they alter their power of attorney.
- Speak to the Agent: You could hire a lawyer to act as your representative and approach the agent to voice your concerns and ask them to step down as agent. If they refuse you will have to file a petition to go to court.
- Prepare for Court: Your legal representative can file a petition with the court to invalidate a power of attorney and transfer the responsibilities of the attorney to another individual while the legal proceedings are in progress.
- Alternate Agent: The court may elect an alternative agent to act on the grantor’s behalf.
Remember, the process can be intricate, and legal guidance is crucial to ensure that you navigate it accurately and effectively.
Power of Attorney Limitations
Though a power of attorney is a powerful legal document, it does not give unfettered powers. An agent’s powers are generally limited to things like signing legal documents, managing medical decisions for the grantor, and making financial decisions on the principal's behalf. Furthermore, under the terms of a POA an agent is always legally required to act in the grantor’s best interest and must not abuse their position.
Your agent can’t do things such as:
- Make changes to your will
- Go against your best interests
- Engage in fraud or deceit
- Replace themselves as the attorney
- They also can’t exceed the scope of the POA. For example, they can’t oversee the grantor’s financial affairs if they were only given a POA of personal care.
Note also that an agent’s power ends when you die. They can’t manage your affairs upon your death unless they are given such powers in your will as the executor.