POWER OF ATTORNEY - General power - Validity - Continuing power of attorney for property

Law360 Canada ( February 3, 2025, 9:51 AM EST) -- Appeal by appellant from lower court's concerning the validity of an enduring power of attorney (POA). The appellant argued the judge committed reversible errors. The Donor, mother to both the appellant and Margaret, had previously granted the appellant a general POA in 2003, with Margaret as the alternate. The Donor became frustrated with what she perceived as the appellant exercising excessive control over her personal and financial affairs. Due to cognitive impairments and family tensions, the Donor later appointed Margaret as her attorney in a 2016 POA. The judge found that the Donor had the requisite capacity to grant the 2016 POA. However, the appellant asserted that the judge failed to apply the correct legal test for determining capacity, failed to give sufficient weight to evidence of the Donor’s diminished capacity and failed to recognize the suspicious circumstances surrounding the preparation and execution of the 2016 POA. She questioned the validity of the 2016 POA, alleging undue influence and lack of capacity. The appellant also asked the court to intervene and invalidate the 2016 POA. The principal issue on appeal was whether a presumption of undue influence could arise in the granting of an enduring power of attorney under the Powers of Attorney Act....
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