Power of Attorney

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Introduction

Since Sophie fell and broke her hip last winter it is painful for her to walk and she has difficulty driving. Friends and family have been very helpful, but Sophie needs someone to do her banking so she can get her bills paid and re‑invest some funds. Sophie's daughter tried to explain the situation to the bank and make a withdrawal on Sophie's behalf, but the bank would not allow it. ***** Fred has just found out he has early Alzheimer's and is concerned that there may come a time when he will not be capable of managing his own affairs. Even now he wants some help, but also wants to be able to handle his affairs when he is able.

There are times when you may want someone else to handle some or all of your affairs.

A power of attorney is a legal document that allows you to give someone else the authority to act on your behalf. In the document you name another person to do certain things for you as your legal representative. In legal terms you are called a grantor and the person you name to act for you is called an attorney.

Even when a power of attorney is in place you can always also continue to act for yourself as long as you are legally capable. It is important to review the terms of a power of attorney regularly to ensure that it continues to meet your needs.

Who can give a power of attorney?

You can give someone power of attorney if you are...

• at least 18 years of age
• able to understand the nature and effect of the document

Who can be given a power of attorney?

You can appoint someone as your attorney if they are...

• at least 18 years of age
• able to understand information relevant to making decisions that they are authorized to make under the power of attorney
• able to appreciate the consequences of making or not making decisions that they are authorized to make under the power of attorney

There are certain people who cannot be appointed to act under a power of attorney...

• A person who is an undischarged bankrupt cannot be appointed to deal with your financial affairs under a power of attorney.
• People who have been convicted, within the last ten years, of a criminal offence relating to assault, sexual assault, other acts of violence, intimidation, criminal harassment, uttering threats, theft, fraud or breach of trust cannot be appointed unless they have been pardoned or the grantor consents in writing. The consent must acknowledge the conviction and be made while the grantor is still mentally competent.
• A person whose occupation or business involves providing personal care or health care services to you cannot be appointed as your attorney.

Other than these restrictions, you can name anyone you choose as your attorney. It should be someone you trust. It can be a relative, friend, lawyer, or an officer of a bank or trust company. When deciding who to appoint it is important to consider what kind of decisions you are authorizing them to make and in what circumstances. The person you choose can refuse to take on the responsibility, so it is important to discuss the matter with them first.

You may want to consider appointing two or more attorneys. You can set it up so that one can act if the other is unavailable, or you can require them to make all decisions jointly. You can also appoint an alternate or successive power of attorney. Naming more than one power of attorney can act as a type of checks and balances, but it can also lead to disputes and delays.

Types of Powers of Attorney

When you appoint someone to act for you under a power of attorney, there are a number of choices that must be made about the kinds of decisions the attorney will be able to make and when the attorney can act for you. It is important to consider the options and have a power of attorney document that suits your needs.

Enduring Powers of Attorney

When appointing someone to act for you under a power of attorney you must decide if you want your attorney to be able to continue to act for you if you later lack capacity. Capacity means...

• being able to understand information that is relevant to making the kind of decisions in question
• being able to appreciate the consequences of making or not making those decisions

It is important to understand that unless you have made an enduring power of attorney the power of attorney will end if you later lose capacity.

Contingent Enduring Powers of Attorney

A contingent enduring power of attorney only comes into effect upon a specified event such as a particular date or occurrence, including the loss of capacity of the grantor. Whether or not the specified event has occurred can be determined by one or more individuals chosen by you and named in your contingent enduring power of attorney. Persons with the authority to make this decision cannot be the attorney or a member of the attorney's family. If no one is named by you or the person(s) you named cannot make the decision, the opinion of two professionals is required. The Powers of Attorney Act, 2002 names those professional groups that are allowed to make this decision.

Personal Powers of Attorney and Property Powers of Attorney

A property attorney can be given the authority to make decisions about property and financial matters. This could include the ability to withdraw money from bank accounts, pay bills and sell or purchase property. If the property attorney was appointed under an enduring power of attorney they can provide for the maintenance or education of your spouse and/or dependant children, unless the power of attorney document prohibits them from doing this. A property attorney cannot make a will for you or change your existing will.

A property attorney appointed under an enduring power of attorney can also be given the authority to make gifts. If the Enduring Power of Attorney does not give the authority to make gifts the property attorney can still make gifts with some restrictions. In particular, the total value of all gifts in any year cannot exceed $1000 and can only be made if grantor can afford it and it is in keeping with what they would normally do.

A personal attorney can be given the authority to make decisions about your personal affairs. This could include deciding where you should live and what kind of help you need around the home. A personal attorney cannot be given the power to make health care decisions for you. This must be done by making a health care directive. For more information on health care directives see the PLEA pamphlet Health Care Directives.

You can appoint a personal attorney, a property attorney or both. You can only appoint a personal attorney if you choose to make an enduring power of attorney. If you appoint both a property and a personal attorney, you can choose to appoint the same person as both or appoint two different people. It is important to note that unless you state otherwise, an attorney under an enduring power of attorney is both a personal and a property attorney.

If you appoint a property attorney and a personal attorney and they disagree, the decision of the property attorney will be preferred if it is not clear by the terms of the power of attorney document who should make the decision and the decision involves spending money. If the personal power of attorney disagrees with the decision of the property attorney either party can ask the court for direction.

General and Specific Powers of Attorney

In addition to deciding whether to appoint a personal attorney, a property attorney, or both, you can choose to give an attorney general authority or specific authority. If you give your attorney general authority, they can make decisions regarding your financial or personal affairs as the case may be.

If you only want your attorney to make certain decisions you can say this in the power of attorney document. For example, a property attorney may be given the power to pay certain bills from a chequing account or you may give a personal attorney authority to decide on a place of residence for you.

Duties of an Attorney

An attorney can do the things that you have given them authority to do in the power of attorney document. You can still act for yourself unless you lack capacity. Unless an enduring power of attorney states otherwise, an attorney cannot pass their power onto someone else.

Anyone who is given authority to act for someone else by power of attorney has certain obligations concerning how that authority can be used. An attorney must act honestly, in good faith, in the best interests of the grantor, and with the care that could be reasonably expected of a person with the attorney's experience and expertise. An attorney must also, wherever possible, take into consideration the wishes of the grantor in carrying out their duties.

When executing documents on behalf of the grantor the attorney should generally sign their own name and indicate that they are signing as power of attorney for the grantor. They should also be prepared to produce a copy of the power of attorney document.

Even when you grant someone a power of attorney you have the right to ask questions and be kept informed about matters when requested.

Giving a Power of Attorney

You may want to consult a lawyer about making a power of attorney document. A lawyer can help ensure that you understand the effect of a power of attorney and help you consider what powers to include. They can also ensure that certain safeguards are in place. You can also prepare the document yourself.

There are different requirements for creating a power of attorney depending on the type of appointment being made. A non‑enduring power of attorney should be in writing and signed by you. The attorney does not need to sign the document.

If you want the power of attorney to be enduring (continue even if you later lack capacity) there are additional requirements. The document must clearly state that you want the person to be able to continue to act for you in the event that you lack capacity to act for yourself. The document must be in writing and be signed and dated by you.

The document must also be witnessed. It can be witnessed by a lawyer who has given you legal advice on the document. Alternatively it can be witnessed by two adults with capacity. The witnesses cannot be the attorney being appointed or a family member of either the attorney or yourself. Witnesses must complete a witness certificate in the form required by the legislation.

If you meet the requirements described, it is not necessary to use any particular form although you may choose to use the form included in the legislation for an enduring power of attorney. Sample forms as well as links to all required forms can be found at www.qp.gov.sk.ca.

Sometimes financial institutions may provide a power of attorney form that gives someone a specific power of attorney over funds held by that institution only. Unless this is the only power of attorney you need, you may want to consider a single comprehensive power of attorney to avoid confusion and disputes. A later power of attorney document may cancel an existing power of attorney document so it is very important to review and fully understand any documents you sign.

Fees

An attorney can receive a fee for services they provide. Unless you specify a fee for services, or a court has made an order setting a fee, the Regulations to The Powers of Attorney Act, 2002 set out a maximum fee that may be charged under an enduring power of attorney. The maximum fee a property attorney appointed under an enduring power of attorney can charge is based on the amount of money they deal with in a month. The maximum fee a property attorney can charge is set out as an hourly rate. Currently the maximum fee a property attorney can charge is 2.5 % of the amount of money dealt with per month, while the maximum fee a personal attorney may charge for services under an enduring power of attorney is $15 per hour. If such a fee is charged it will be paid out of your assets.

Your attorney must give you an annual accounting of any money they were paid each year. There are different forms for property attorneys  and personal attorneys. If you lack capacity, this accounting is made to someone you have named in the power of attorney document for this purpose or, if no one is named, to your most immediate and available family member and the Public Guardian and Trustee.

Accounting

It is important to continue to regularly monitor your financial accounts as long as you are able to do so. If you have questions about a particular matter, ask questions or discuss the matter with another trusted individual, financial advisor or lawyer. If you are not entirely satisfied, you can ask for an accounting.

Someone you appoint as your attorney must give you an accounting anytime you request one, regardless of whether they charge a fee for the services they provide. There are different forms for property attorneys and personal attorneys. If you lack capacity, an accounting can be requested by a person you have named for that purpose in the power of attorney document. If no person is named, an adult member of your family can request an accounting. If you have named both a personal and property attorney, they can also request that the other do an accounting. If you or someone asking on your behalf cannot get an accounting from the attorney, the Public Guardian and Trustee can be asked to direct that the attorney make an accounting.

As well, any interested party can ask the Public Guardian and Trustee to direct that an accounting be made. The Public Guardian and Trustee can direct that an accounting be made or investigate to ensure that an accounting is accurate. If the Public Guardian and Trustee does not direct an accounting, or the attorney fails to provide an accounting after being directed to do so, a court application can be made.

When an enduring power of attorney comes to an end every attorney must provide a final accounting. There are different final accounting forms for property attorneys (Form K) and personal attorneys (Form L). The final accounting must be provided within six months of the power of attorney coming to an end. If no final accounting is provided an application for a court order directing the attorney to provide it can be made.

Ending a Power of Attorney

Ending a Non-Enduring Power of Attorney

Either you or the attorney can cancel a non‑enduring power of attorney at any time. You can cancel it by giving written notice to the attorney. You do not need to give them any reason.

The attorney can cancel the power by telling you that they are ending the power. In this case they should return the document to you. All organizations and companies dealing with the attorney should be notified in writing that the power of attorney has been cancelled.

A power of attorney may also come to an end on a date specified in the document. A specific power of attorney ends when the task is completed or a specified time or event occurs. For example, a power of attorney to sell certain real estate ends when that property is sold.

The power of attorney ends if you become mentally incompetent, unless you have given an enduring power of attorney. A power of attorney also ends if your attorney becomes mentally incompetent, or either of you die. Bankruptcy may also affect a power of attorney.

Ending an Enduring Power of Attorney

An enduring power of attorney can be ended in much the same way as a non-enduring power of attorney. You can cancel it by giving a written revocation to the attorney. You can only do this if you have the capacity to understand the nature and effect of the enduring power of attorney and the effect of ending it.

As well, the attorney can cancel the enduring power of attorney by giving you a written resignation. If you lack capacity the written notice can be given to another attorney, if you have appointed more than one. If there are no other attorneys, your most immediate and available family member will be given the written resignation.

An enduring power of attorney, like a non-enduring power of attorney, ends if you or your attorney dies. It does not end if you lack capacity but will end if your attorney lacks capacity. If you appoint your spouse as an attorney, the enduring power of attorney will end if you stop living together as spouses because you have decided to end your relationship.

An enduring power of attorney will also end if the court appoints someone else to make the decisions for you, or the Public Guardian and Trustee is given the authority to make decisions for you. For example, a power of attorney appointing a property attorney would end if the court appointed a property decision-maker for you and a personal power of attorney would end if the court appointed a personal decision-maker for you.

Any interested party can apply to court to have a power of attorney ended if they think that an attorney had abused their authority. If the court is satisfied that this is the case the court can end the power of attorney.

An enduring power of attorney will also end if the attorney no longer meets the conditions for being appointed as an attorney. This means that an enduring property attorney cannot continue to act if they become bankrupt and that an enduring power of attorney ends if the attorney starts providing personal or health care services to you or is convicted of one of certain criminal offences.

ISBN/ISSN number: 1924-1119