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Property and debt division lawyers

Vancouver Setting Aside Power of Attorney Lawyers  handle cases where a family member wishes to set aside a power of attorney on the basis of undue influence. Lorne N. MacLean QC leads our experienced Vancouver Setting Aside Power of Attorney Lawyers team. Watching a loved one decline is hard but worse still is seeing them being mistreated and stolen from. Our MacLean Estate Litigation lawyers have 6 offices across BC and in Calgary.

Vancouver Setting Aside Power of Attorney Lawyers 604-602-9000

Articled student Rana Yavari,  of MacLean Estate Litigation’s Vancouver Setting Aside Power of Attorney Lawyers, explains today that a Power of Attorney is a document which gives another party the legal authority to act on your behalf in order to manage your legal and financial affairs.

Duties of attorney

Under the BC Power of Attorney Act, an attorney must:

(a) act honestly and in good faith,

(b) exercise the care, diligence and skill of a reasonably prudent person,

(c) act within the authority given in the enduring power of attorney and under any enactment, and

(d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.

A Power of Attorney can be revoked if it has been unduly influenced. In this blog, we will focus on how a Power of Attorney can be set aside on the basis of undue influence.

Vancouver Setting Aside Power of Attorney Lawyers -Test on Undue Influence

The Supreme Court of Canada in Geffen v. Goodman Estate 1991 explained the indicia of undue influence of one person in a relationship with another: 

“To dominate the will of another simply means to exercise a persuasive influence over him or her. The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well. The point is that there is nothing per se reprehensible about persons in a relationship of trust or confidence exerting influence, even undue influence, over their beneficiaries. It depends on their motivation and the objective they seek to achieve thereby”

When a Power of Attorney is considered “unduly influenced”?

The test for undue influence in the context of a power of attorney dispute has been settled in Vanier v. Vanier, 2017 ONCA 561. The same test that applies to a Will challenge also applies to a power of attorney challenge.  Just like there is a rebuttable presumption that a Will is valid when there is compliance with the formalities of execution, so too there is a rebuttable presumption that the grantor has capacity to grant a power of attorney. Just like the onus to prove one’s case switches when there are suspicious circumstances in a Will challenge, so too does the onus switch in a power of attorney dispute. When there are suspicious circumstances, it’s up to the propounder of the Will/Grantee of the power of attorney to prove there is no undue influence.

Even if there is limited evidence before the Court to demonstrate undue influence, the Court can still find undue influence and revoke the Power of Attorney.

In Granger v. Granger, 2016 ONCA 945, the court revoked the Power of Attorney as the trial judge considered the daughter’s domineering and bullying nature and her influence over the mother, along with his observation of the daughter sitting in the back of the courtroom trying to influence her mother’s testimony. The trial judge said he had “little to no doubt that Helena has orchestrated all of the events giving rise to the transfer of the property to herself and Katarina in joint tenancy.”

Call our senior Vancouver Setting Aside Power of Attorney Lawyers today at 604-602-9000 to get the help you need to stop your loved one being taken advantage of.