Termination Of Enduring Power Of Attorneys

An enduring power of attorney survives a grantor's incapacity and is often employed specifically for after a loss of the grantor's capacity. ¹ Enduring power of attorney are made possible by provincial legislation. If a power of attorney is not enduring then when the grantor loses capacity, the power of attorney terminates and can no longer be validly used.² Non-enduring power of attorneys are often used in business arrangements or for some other specific limited purpose (e.g., the grantor is out of the country and needs someone to handle their financial affairs). Enduring power of attorneys are often signed at the same time as wills, as they appoint people to act on their behalf even after they lose capacity and can no longer monitor their conduct themselves. The grantor may appoint either a personal attorney or a property attorney.

Regardless of the grantor's intentions to allow their attorney to continue acting for them after a loss of capacity, the legislation created additional protections which may allow for the termination of a power of attorney in various circumstances, including:

1. By court order, including if the attorney has abused their authority;³
2. On the written resignation of the attorney;⁴
3. If applicable, upon a date indicated in the power of attorney;⁵
4. If a property attorney becomes an undischarged bankrupt;⁶
5. If an attorney receives compensation for personal services or health care services provided to the grantor as part of their occupation or business;⁷
6. If the attorney has been convicted of certain types of criminal offences (e.g., broadly described as those that are acts of violence, intimidating, criminal harassment, uttering threats, theft, fraud or breach of trust");⁸
7. If a personal or property decision maker or the Public Guardian and Trustee is appointed (or, for the Public Guardian and Trustee, they sign an acknowledgment to act) as guardian or co-decision-maker for the grantor or attorney under The Adult Guardianship and Co-decision-making Act;⁹
8. If a property attorney is appointed for a missing person; or¹⁰
9. If the grantor and the attorney are spouses, then upon them ceasing to cohabitate in a spousal relationship with an intention to end that relationship. ¹¹

Some of the previously mentioned events can occur and "automatically" trigger the termination of the attorney's authority. However, practically speaking, an attorney might deny the occurrence of the triggering event or deny that it means their power of attorney is terminated. An interested party could also apply for declaratory relief that the triggering event occurred and that power of attorney is terminated. Alternatively, that triggering event could be evidence that supports a guardianship application to become the decision-maker for the dependent adult.

For more information on power of attorneys, their enabling legislation, and their obligations applications, please consult the advice of one of our lawyers with expertise in the area. For additional information on decision-makers and their obligations, consider the following article: The Accountability of a Power of Attorney: Preventing and Detecting Financial and Personal Abuse

This article, Termination of Enduring Power of Attorneys, is part of a series relating to the issues of Estate Planning in Saskatchewan, written by Saskatoon associate, Paige E. Van de Sype. Follow us on LinkedIn and get notified when the next article in this series is published. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.

Footnotes

1 The Powers of Attorney Act, 2002, SS 2002, c P-20.3 [POAA]

2 Rikley v Mooney, 2006 SKQB 544 (CanLII) at para 13

3 POAA s 15, s 19(1)(i), (2) [POAA]

4 POAA, s 19(1)(b)

5 POAA, s 19(1)(a).

6 POAA s 19; POAA, s 6(1)(a)(ii).

7 POAA s6(1)(b).

8 POAA s 19(1)(f); POAA, s 6(1)(a)(iii).

9 POAA, s 19(a)(g) and (g.1)

10 POAA, s 19(1)(g.2)

11 POAA, s 19(1)(h).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.