With an aging population, combined with an increased life expectancy, there continues to be ever increasing occurrences of situations of incapacity. As professional advisors, part of a solicitorís service and obligation to its clients, is to anticipate the consequences of estate planning on the family and to assist clients in tailoring their planning needs to their particular family dynamics. Careful, considered and creative planning will help to avoid family conflict, and in turn, costly and senseless litigation.

The power of attorney document is an instrument which facilitates the maintaining of control over oneís affairs by planning before incapacity. Being prepared allows the grantor of a Power of Attorney to require an attorney to take legal steps to protect the grantorís interests and wishes.

The power of attorney document is governed by common-law principles, agency law, contract law, and the law of fiduciaries and legislation. The power of attorney document can be tailored to specific wants and needs of the grantor of the instrument or document.

A Continuing Power of Attorney for Property as defined by the governing legislation, the Substitute Decisions Act, is continuing if it states that it is a continuing Power of Attorney; or it expresses the attention that the authority given may be exercised during the grantorís incapacity to manage property.

A Power of Attorney for Personal Care came into being in 1992, when the forms were brought into effect, resulting in the Substitute Decisions Act, the Consent to Treatment Act, 1992, the Advocacy Act 1992 and the Consent and Capacity Statute Law Amendment Act of 1992.

The Power of Attorney for Personal Care is a flexible vehicle for assisting the grantor with personal care decisions when and if it becomes necessary to do so.

The Substitute Decisions Act govern the form and requirement of making Powers of Attorney for Property, for Personal Care, the affairs of incapable persons, the appointment of Statutory Guardians and court appointed guardians.

Inherent by its nature, the Power of Attorney document often create suspicion, which frequently and inevitably brings the attorneyís actions, motives, and conduct into question.

There are an infinite number of power of attorney disputes and complaints. The nature of each complaint and the circumstances and the techniques employed in its resolution are all different.

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