Acting as an Attorney for Property: Gifting and Dementia

 



If you’re acting as an attorney for property and the grantor has dementia, deciding whether gifts can be given requires balancing their wishes with your legal responsibilities under Ontario’s Substitute Decisions Act, 1992 (SDA).

Your Authority to Give Gifts

As an attorney for property, you can only make gifts on the grantor’s behalf if:

  1. Explicitly Authorized: The Power of Attorney (POA) document specifically permits gifting.
  2. Statutory Rules Apply: If the POA document is silent, the SDA allows gifts under these conditions:
    • The grantor’s financial needs (current and future) are secure.
    • The gift is consistent with the grantor’s past practices or known intentions.

Assessing the Grantor’s Wishes

If the grantor, even with dementia, expresses a desire to give a gift:

  • Evaluate their capacity: Ensure they understand the nature, value, and consequences of the gift. If their capacity is uncertain, seek a professional assessment.
  • Respect their history: Consider their past gifting practices and known values to determine if the gift aligns with their intentions.

Types of Gifts

  • Small, routine gifts: Tokens for birthdays or holidays are typically acceptable if they don’t harm the grantor’s finances.
  • Significant gifts: Larger gifts, such as substantial sums of money or property transfers, require greater caution and may need court approval, especially if they deviate from past behavior.

Your Responsibilities

  • Act in the grantor’s best interests: Your primary duty is to safeguard their financial security while respecting their dignity and wishes.
  • Document thoroughly: Keep detailed records of the grantor’s requests, your decision-making process, and any gifts made.
  • Seek guidance if needed: For unclear or contentious situations, consult a lawyer or apply to the court for direction.

By following these principles, you ensure compliance with the SDA while honoring the grantor’s values and maintaining their financial security.

If you have specific concerns or a complex situation, consulting an Ontario lawyer specializing in estate or elder law can provide tailored advice. 

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