“The capacity requirements to give a Power of Attorney for Property are set out in s. 8(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”):
(a) knows what kind of property he or she has and its approximate value;
(b) is aware of obligations owed to his or her dependents;
(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the restrictions set out in the power of attorney;
(d) knows that the attorney must account for his or her dealings with the person’s property;
(e) knows that he or she may, if capable, revoke the continuing power of attorney;
(f) appreciates that unless the attorney manages the property prudently, its value may decline; and
(g) appreciates the possibility that the attorney could misuse the authority given to him or her.
The capacity requirements to give a Power of Attorney for Personal Care are set out in s. 47(1) of the SDA:
(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person.
Suspicious circumstances surrounding the preparation of the POAs, the capacity of the grantor, or undue influence shift the burden of proof to the grantee: Stewart v. Zawadzinski, 2023 ONSC 387, 87 E.T.R. (4th) 99, at para. 44, citing Nguyen-Crawford v. Nguyen, 2010 ONSC 6836 (CanLII), 2010 ONSC 6826, 71 E.T.R. (3d) 55, at para. 85.”