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…I don’t have a will or power of attorney?
A question often asked is whether one has the capacity to make a valid will or power of attorney.
“Capacity”, as discussed in this article, includes both the minimum age and mental capacity required to make a will or power of attorney. The onus lies on those seeking to act under a will or power of attorney to prove the capacity of its maker.
Section 8 of the Succession Law Reform Act (Ontario) provides, in part, that a will made by a person who is under the age of eighteen years is not valid unless, at the time of making the will, the person is or has been married, is contemplating marriage and the will states that it is made in contemplation of marriage to a named person (except that such a will is not valid unless and until the marriage to the named person takes place), is a member of a regular force or placed on active service with the Canadian Forces under the National Defence Act (Canada) or is a sailor and at sea or in the course of a voyage. Thus, in most cases, a person who is under the age of eighteen years cannot make a valid will in Ontario.
Parts I and II of the Substitute Decisions Act, 1992 (Ontario) authorize the exercise of a power of decision by one or more persons on behalf of another person. Part I pertains to decisions in the management of one’s property, whereas Part II pertains to decisions concerning one’s personal care. They provide for the granting of a power of attorney authorizing the person(s) named as attorney(s) to make, on the grantor’s behalf, these types of decisions.
Part I applies to decisions on behalf of persons who are at least eighteen years old. Thus, a person who is under the age of eighteen years cannot make a valid power of attorney for property in Ontario. Similarly, Part II applies to decisions on behalf of persons who are at least sixteen years old. Thus, a person who is under the age of sixteen years cannot make a valid power of attorney for personal care in Ontario.
As noted, a person seeking to act under a will or power of attorney must also prove the mental capacity of its maker. The case law provides that, to make a valid will, one must understand the nature of the act and its effects, the extent of the property of which he or she is disposing and the claims to which he or she ought to give effect. As well, one must not be influenced by any insane delusion which might bring about a disposal of one’s property which, if his or her mind had been sound, would not have been made.
Section 8 of the Substitute Decisions Act, 1992 (Ontario) provides, in part, that a person is capable of giving a power of attorney for property if he or she knows what kind of property he or she has and its approximate value, is aware of the obligations owed to his or her dependants, knows that the attorney will be able to do on his or her behalf anything in respect of property that he or she could do if capable, except make a will (subject to any conditions and/or restrictions set out in the power of attorney), knows that the attorney must account for the attorney’s dealings with his or her property, knows that he or she may, if capable, revoke the power of attorney, appreciates that unless the attorney manages the property prudently its value may decline and appreciates the possibility that the attorney could misuse the authority given to the attorney.
Section 47 of the Substitute Decisions Act, 1992 (Ontario) provides, in part, that a person is capable of giving a power of attorney for personal care if he or she has the ability to understand whether the proposed attorney has a genuine concern for his or her welfare and appreciates that he or she may need to have the proposed attorney make decisions for him or her.
Thus, one’s mental capacity to make a valid will or power of attorney will be a question of fact in each case. References to the facts of similar cases will, in this area of law, be unhelpful.
Finally, I note that, in some circumstances, although a person may have the capacity to make a valid will or power of attorney, the will or power of attorney may not represent the expression of his or her free will. Thus, in my next article, I will discuss the concept of undue influence and its effect on one’s ability, as opposed to capacity, to make a valid will or power of attorney.