This does not mean that problems cannot arise when an attorney for property or
personal care is making decisions on behalf of a person found incapable to make
those decisions for themselves. An attorney has control over a person’s money
and property. This power can easily be abused. Unless a person is capable to
revoke a power of attorney, it can be difficult to control abuse by an attorney
without resorting to litigation which can be complex and costly.
There is no central body that keeps track of power of attorney documents. It is up
to each individual to keep a record of any powers of attorney they may have
granted or revoked. If a client cannot remember if they granted a power of
attorney to someone, it may not be possible to confirm whether a valid power of
attorney exists or not, unless the attorney makes themselves known. It is also not
necessary for a person named as an attorney in a document to consent to being
named. It is possible therefore that even a person named as an attorney for
property or for personal care may not be aware of that fact. If an attorney for
property is active, the client’s bank may be able to confirm this.
C. Guardians of Property and of the PersonIf a person who has been found incapable has not, prior to their becoming
incapable, granted a power of attorney, the usual practice is for a guardian to be
appointed for them.^16
Under the SDA there are two types of guardians:
- guardians of property; and
- guardians of the person.
(^16) This does not mean it is not worth exploring whether a client subject to a statutory guardianship
may not be able to appoint a power of attorney.