Part I: Capacity to Form the Intention to Live Separate and Apart
By: Diya Chopra, Articling Student and Mary Wahbi, Partner
This is the first article in a three-part series discussing the powers and limits of an attorney, acting under a power of attorney for property, in the context of Family Law.
A continuing power of attorney for property is a legal document in which you authorize someone to act on your behalf should you become mentally incapable. This person, known as your “attorney”, has authority under the Substitute Decisions Act (the “SDA”) to do anything in respect of your property that you could do if you were capable, except make a will. It has been held that the power of attorney must contain a provision expressly stating that it continues after any subsequent incapacity in order for the named attorney to exercise this power. Under the Family Law Rules, an attorney must obtain court approval before acting as such.
Photo by: Keoni Cabral