megram - Index

megram - 55NovOttawa - Index

undergo the assessment because it requires their consent.
In this context, the role of the lawyer is to emphasize the
need to make proper legal and enforceable documents so
that the person who is named in the document as attorney
is appointed without difficulty and the capacity of the
grantor of the document cannot be questioned later.When
the suggestion for an assessment comes from the lawyer,
this takes the burden off family members, who may have
difficulty addressing this issue with their parent.
The second hurdle involves the costs, which is usually
in the vicinity of $800 to $900. In a close case, this is still
worth every penny to bring this issue to rest. Sometimes
the client will suggest that the family doctor provide a letter
in lieu of an assessment.This may have some value, but
not every family doctor has the specialization necessary for
this kind work, but they do at least have an ongoing relationship
of trust with the patient and will have a medical
history at hand.Sometimes in smaller towns this is the only
remedy conveniently available.If a person’s capacity is ever
questioned in a court of law, a doctor’s letter will provide
some comfort to the judge in the absence of any contradictory
evidence; however an official capacity assessment is
very difficult to attack.
Different degrees of capacity are required for different
tasks. By way of comparison, Section 47 of the Substitute
Decisions Act states that a person is capable of giving a
power of attorney for personal care if the person, a) has
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the ability to understand whether the proposed attorney
has a genuine concern for the person’s welfare; and b)
appreciates that the person may need to have the proposed
attorney make decisions for the person.
The higher degree capacity required for a power of
attorney for property is related to the major legal responsibilities
assumed by an attorney for property.
With the power of attorney for property:
the attorney is required to keep the incapable person’s
financial accounts and transactions completely separate
from the attorney’s
the attorney must never borrow or use the incapable
person’s money for him or herself or family and friends
unless authorized by law
the attorney must consider the personal comfort and
well-being of the incapable person in determining
whether any financial decision or transaction is for the
incapable person’s benefit
the attorney for property must make arrangements for
expenditures that are necessary for the support and
care of the incapable person and must manage their
property in a way that accommodates decisions made
about the incapable person’s personal care
an attorney is not obliged to preserve the incapable
person’s estate for its eventual inheritance by the person’s
children or others, despite the often vocal wishes
of potential heirs
the attorney must try to encourage the incapable person
to participate, to the best of his or her ability, in the
attorney’s decisions about property
the attorney must also foster contact with family members,
caregivers
the attorney must discuss financial decisions and transactions
with family members and friends who are in
regular contact with the incapable person and those
persons providing personal care to the incapable person
from time to time
the attorney is also liable for damages resulting from his
or her actions unless the attorney has acted honestly,
reasonably and diligently
the attorney must keep good records to show all transactions
and decisions made on behalf of the incapable
person.
In terms of record keeping, an attorney for property
must maintain a list of all of the incapable person’s assets
as of the date of the first time that the attorney carries out
any transaction on the incapable person’s behalf. These
assets would include real estate, such as a house or cottage,
money in the bank, investments, vehicles, jewellery
and other personal property. Furthermore, an up-to-date
list of all assets acquired and disposed of on behalf of the
incapable person has to be maintained.
The attorney must keep a list of all money that is paid