A Power of Attorney (POA) is a legal document that grants someone the authority to act on another person’s behalf in financial, legal, or health-related matters. While POAs are commonly used in Ontario to ensure that an individual’s affairs are managed effectively, there are situations where the validity of a POA may be contested. Challenging a POA can be complex and sensitive, whether due to concerns about the principal’s mental capacity, undue influence, fraud, or other reasons.

This blog post will explore the legal grounds for challenging a POA in Ontario, the process involved, and the key legal principles that govern such disputes. Understanding the intricacies of POA challenges can help protect individuals from potential misuse and safeguard their interests.

Understanding Power of Attorney in Ontario

Before diving into how and why a Power of Attorney may be challenged, it is essential to understand the nature of this legal document and the roles involved.

In Ontario, a POA allows an individual (the “grantor” or “donor”) to appoint another person (the “attorney“) to manage certain aspects of their personal, financial, or health care decisions. There are two main types of POAs in Ontario:

1. Power of Attorney for Personal Care: This grants the attorney the authority to make health care and personal care decisions on behalf of the grantor, typically when the grantor becomes incapable of making these decisions themselves.
2. Power of Attorney for Property: This grants the attorney the authority to manage the grantor’s financial affairs, including paying bills, managing assets, and making property-related decisions.

In both cases, the grantor must have the mental capacity to decide to appoint an attorney, and the attorney must act in the grantor’s best interests.

Grounds for Challenging a Power of Attorney

There are several legal grounds on which a Power of Attorney can be challenged in Ontario. Below are the most common grounds for contesting a POA:

Lack of Mental Capacity

One of the primary grounds for challenging a POA is the claim that the grantor lacked mental capacity at the time the POA was executed. For a POA to be valid in Ontario, the grantor must be mentally competent to understand the nature and effect of the document. This means the grantor must understand:

• The nature of the document they are signing;
• The powers they are granting to the attorney; and
• The potential consequences of the appointment.

If the grantor did not have the requisite mental capacity due to conditions such as dementia, mental illness, or other cognitive impairments, the POA may be invalid. To successfully challenge a POA on the basis of lack of mental capacity, the challenger would typically need to provide evidence, such as medical records or testimony from medical professionals, demonstrating that the grantor was not capable of understanding the document when it was signed.

Undue Influence or Coercion

Undue influence or coercion is another common ground for challenging a Power of Attorney. If the challenger believes that the grantor was pressured, manipulated, or forced into signing the POA against their will, they may claim that the document is invalid due to undue influence. This can happen when the attorney exerts pressure on the grantor, either emotionally or physically, to induce them to sign the document.

Undue influence is often difficult to prove, as it requires evidence that the attorney used improper tactics to control the grantor’s decision-making. Factors such as the relationship between the grantor and attorney, the presence of third parties during the signing of the POA, and any signs of manipulation can be examined to support the claim.

Fraud or Misrepresentation

A Power of Attorney may also be challenged if it is believed that the document was obtained through fraudulent means or misrepresentation. This could include situations where the grantor was misled about the nature of the document or the attorney made false statements to induce the grantor to sign.

Fraud can also involve situations where the attorney falsified the grantor’s signature, forged the document, or intentionally altered the terms of the POA without the grantor’s knowledge or consent. In such cases, proving the fraud will require evidence, such as handwriting analysis or testimony from witnesses, to establish that the grantor did not sign the document willingly or knowingly.

Revocation of the Power of Attorney

The grantor can revoke A Power of Attorney at any time, as long as the grantor has the mental capacity to do so. If the grantor revokes the POA and the attorney continues to act under the powers granted by the document, this can form the basis for a challenge. The revocation must be made in writing and communicated to the attorney, and the attorney is legally obligated to cease acting under the POA once the revocation is in effect.

If there is a dispute about whether the POA was revoked correctly, a court may be asked to determine the validity of the revocation and whether the attorney’s actions after the revocation were lawful.

Lack of Proper Execution

For a Power of Attorney to be legally valid in Ontario, it must be properly executed. This includes ensuring that the document is signed by the grantor and, in most cases, witnessed by two people who are not the attorney or beneficiaries under the POA. The document may be invalid if the POA was not executed in compliance with the formal requirements set out in the Substitute Decisions Act.

For example, if the grantor’s signature is absent or there are no proper witness signatures, the POA may be challenged because it was not legally executed. Similarly, if the grantor signed the document while under duress, intoxicated, or confused, it may not meet the legal requirements for execution.

The Process of Challenging a Power of Attorney in Ontario

Challenging a Power of Attorney typically involves several steps:

1. Gathering Evidence

The first step in challenging a POA is to gather relevant evidence to support the claim. This may include medical records, witness statements, or any documentation that shows the grantor’s mental state or the circumstances under which the POA was signed. Any correspondence or communications that suggest improper conduct should also be collected in cases of fraud or undue influence.

2. Seeking Legal Advice

Challenging a POA is a complex legal process that requires skill and experience in estate law, capacity issues, and the legal requirements of POA documents. Consulting with a lawyer who understands POA challenges will help ensure the proper documentation is filed and the case is prepared correctly, avoiding costly delays and mistakes.

3. Filing an Application with the Court

If the challenge cannot be resolved through negotiation or mediation, the next step is to file an application with the Ontario Superior Court of Justice. This application will request that the court review the validity of the POA and determine whether it should be upheld or revoked. The court may order a hearing and take evidence from both sides before making a decision.

4. Court Hearing

After hearing and reviewing the evidence, the court may either uphold the POA, revoke it, or modify its terms. If the POA is revoked, the attorney will no longer have authority to act on behalf of the grantor, and the court may appoint a new attorney or guardian to manage the grantor’s affairs.

Contact the Toronto Power of Attorney Lawyers at NULaw for Trusted Representation

Challenging a Power of Attorney in Ontario is a serious legal matter that requires careful consideration and the skill of an experienced lawyer. Whether you are concerned about the validity of a POA or are seeking to protect the interests of a loved one, NULaw helps you understand the legal grounds and process involved and ensure your rights are upheld. Our team of experienced wills and estate lawyers has extensive knowledge of Powers of Attorney, including the process for challenging or defending an existing POA. To book a confidential consultation, please call 416-481-5604 or contact us online.