Help! I don’t want to be a power of attorney!
Last Updated on August 13, 2023 by Shayna Beeksma
Disclaimer: This article on your rights as a power of attorney in Ontario is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
We have talked about the importance of selecting the right people – people you trust – to make decisions for you if you cannot make them for yourself. We discussed the importance of selecting the right executor to handle your final affairs according to your wishes.
In theory, it should all be straightforward. Prepare well-thought-out estate planning documents. However, in practice, things sometimes go differently than planned.
Can I resign as power of attorney?
However, what if your relative appoints you under a power of attorney and you do not want that role? You may no longer feel capable of handling such a weighty responsibility. Family dynamics or other challenging situations make it so that continuing in this role exposes you to legal risks.
Can you simply walk away? In this article, we will discuss your options in this kind of challenging situation.
Have you used the power of attorney?
The first question you’re going to ask is: “Have I used this power of attorney at any point?”. Or has your relative been capable enough to make decisions at this point?
If you have not used the power of attorney
If the power of attorney has not been used at all, renunciation may be an easy way to step down. That means you formally resign in writing and notify the grantor, any other power of attorney and any named substitutes.
The important thing is that you cannot have used the power of attorney to make decisions for the grantor at any point.
If the power of attorney has been used
If you have used the power of attorney, things can become a little more complicated.
The quickest and easiest solution is to have the grantor prepare a new power of attorney, if they are capable of doing so. However, if there are complex family issues, you may not be able to compel the grantor to prepare a new power of attorney.
In that instance, you would need to seek an order asking the court to remove you as a power of attorney. While the court may agree that it is worthwhile to remove you, they may be concerned that there is no longer anyone to act in the grantor’s best interests.
One possible solution may involve appointing a neutral trustee to manage the grantor’s affairs. This would provide a buffer between you and the grantor. A professional trustee can act in the best interest of the grantor without having any emotional entanglements.
Estate Planning Lessons
It’s crucial to learn from real-life scenarios where even well-prepared estate documentation may not align with the complexities of relationships and other factors. We recently spoke to someone who faced such a situation, realizing that continuing as the power of attorney was not in her best interests and exposed her to risk.
This serves as a stark reminder that the best-laid plans can often go awry. Therefore, seeking advice from an experienced estate lawyer when facing challenging situations is invaluable. They can help navigate legal complexities, explore viable options, and ensure the best possible outcomes for all involved parties.
Knowing how to respond and protect ourselves and our loved ones is essential. By consulting with our team of experienced estate lawyers, you can gain valuable guidance to make well-informed decisions. You are then able to secure a more stable and secure future for everyone involved. Remember, in complex situations, legal advice can be the guiding light to find the best path forward. Reach out to our team today to get answers to your estate law questions.