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Power of Attorney and Capacity Litigation

When a person’s mental capacity to make his or her own decisions diminishes, often due to aging, illness, or injury, friends or family members may step in to assist. In some cases, “assistance” can mean different things to different friends and family members resulting in disagreements or even litigation. In other cases, the “assistance” is more blatantly an abuse or misuse of the powers granted to the friend or family member under a power of attorney and this abuse or misuse can result in disputes and litigation. These disputes can be focused on the management of the incapable person’s money or the decisions about his or her personal care, or both. In almost all of these cases, the emotions and dynamics among the parties are highly charged and the stakes are incredibly high as they usually involve the fundamental well-being of a loved one.

The Substitute Decisions Act, 1992 is the legislation that governs power of attorney and capacity issues. The law with respect to powers of attorney and capacity is constantly being refined and interpreted through an ever-growing body of case law as the litigation regarding power of attorney and capacity issues increases with an aging demographic.

Power of attorney and capacity litigation can include: