Snowbirds and a Power of Attorney
The cooler weather is cause for many people, retirees especially, to plan an annual sojourn south.
In preparing for the winter, protecting real property -- often a significant asset -- may be top of mind.
My colleague, Paul Trudelle, wrote about "Real Estate Transactions Involving Powers of Attorney" in July 2008. While travelling south for the winter does not require a sale, steps can be taken to minimize risks to real property. The Government of Ontario suggests that to avoid real estate fraud one should protect his or her identity and be alert to identity theft.
Regarding a Power of Attorney, the government also suggests caution: "Whenever you give another person a power of attorney that permits them to deal with your personal assets, you should consult with your lawyers or advisers regarding appropriate limitations."
In a 2004 Canadian Bar Association paper -- Cross-Border Issues for Snowbirds and Roaming Retirees - Marilyn Piccini Roy wrote: "If the Snowbird owns real estate elsewhere, this power of attorney may not be recognized there if the law of the situs applies its own law to the formal or substantive validity of the power of attorney or to its effectiveness vis-à-vis third parties." If a Power of Attorney deals with assets in different jurisdictions, one should seek legal advice in the jurisdiction of the asset(s).
Recent Ontario case law highlights issues that can arise regarding real estate when a fraudulent Power of Attorney is used. Reviczky v. Meleknia; Caplan (Intervenor) 2007 Canlii 56494 (On. S.C.) raises quesitons about a solicitor's duty to"go behind" a Power of Attorney by enquiring about the donor's mental capacity at the time of signing and later, as well as evidentiary requirements. The recent case law reminds all of us, including snowbirds, of the risks that exist with a Power of Attorney.
Jonathan Morse
