More on Enduring Power of Attorney

What is the difference between Power of Attorney and Enduring Power of Attorney?
When does an Enduring Power of Attorney come into effect?
How to check up on an attorney
When does the Enduring Power of Attorney end?

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What is the difference between Power of Attorney and Enduring Power of Attorney?

A Power of Attorney:

• is a legal document that gives another person authority to act on behalf of the donor
• can only deal with financial matters and will only give authority to act with regard to the specific matters mentioned in the document
• can be given for a specific time period, and can be given to more than one person
• also allows for alternate attorneys, so that if one person was not prepared or could not act as an attorney, another attorney would be appointed

A limitation is that a Power of Attorney becomes void if the maker of the document becomes mentally incapacitated or infirm.

The law therefore allows for the creation of an Enduring Power of Attorney.

• An Enduring Power of Attorney does not become invalid when the maker of the document becomes mentally incapacitated as long as the document clearly states that intention.

• To be valid an Enduring Power of Attorney must comply with the Power of Attorney Act.

• In particular, it must contain a statement that says it will take effect when the donor of the power becomes mentally incapacitated or infirm, or that it will continue despite any mental incapacity or infirmity.

A Power of Attorney and an Enduring Power of Attorney can be contained within the same document. For example, a person can complete a Power of Attorney to take effect immediately. The document can also include an Enduring Power of Attorney by stating that the powers delegated will continue despite the donor becoming mentally incapacitated or infirm.

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When does an Enduring Power of Attorney come into effect?

• It comes into effect at a specific time or when a specific event occurs which includes the mental incapacity or infirmity of the donor.
• It can provide that the particular event has conclusively occurred when one or more named persons have provided a written declaration to that effect. For example, the document specifies that it comes into effect upon the mental incapacity of the donor; it may also name one or more doctors who must make a written declaration as to when that has occurred. The person appointed to become the attorney may be the person who makes that decision.
• In a situation where the person named to state that the donor has become mentally incapacitated or infirm has already died or is not able to make that declaration, the Power of Attorney Act provides for the declaration of incapacity to be made by two medical practitioners. That is also the case when the document does not name a person who can bring the Enduring Power of Attorney into effect on the basis of mental incapacity or infirmity of the donor.
• Restrictions on the confidentiality of the health care information of the donor are waived to the extent necessary for confirming that mental incapacity or infirmity have taken place.

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How to check up on an attorney

• It is possible to apply to court for an order making an attorney account for any or all transactions that he or she has entered into while using the power of attorney.
• The application can be made by the donor, the donor's personal representative, a trustee of the donor's estate, or where the donor cannot make reasonable judgments in matters relating to his or her estate, by any interested person.
• The donor and the attorney must be given notice of the application.
• The court can make any order that is appropriate in the circumstances.
• The application can still be made even if the document creating the Enduring Power of Attorney states that an application can never be made to the courts for the production of the accounts.

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When does the Enduring Power of Attorney end?

An Enduring Power of Attorney can be expressed by the donor to be irrevocable, that is, it cannot be revoked or taken away. If the document is not expressed to be irrevocable, there are several ways that the Enduring Power of Attorney can be terminated or revoked.

• Any interested person can apply to court for an order terminating the Enduring Power of Attorney. The donor and the attorney must receive notice of the application. The court will hear the application and can terminate the Enduring Power of Attorney if it is in the best interests of the donor. The court can then direct the person who applied for the order to now apply for an order for trusteeship in respect of the donor's estate. The court can also appoint an interim trustee with powers that the court considers appropriate.
• An attorney can apply to court for permission to renounce the Enduring Power of Attorney. The application is treated by the court in the same manner as an application to terminate the Enduring Power of Attorney. If there is more than one attorney, it is possible for just one attorney to seek permission to renounce. The other attorneys must be given a notice of the application. The court may then allow one attorney to renounce if it is in the best interests of the donor and if satisfied that any remaining attorney is prepared to continue with the duties.
• The attorney can be revoked in writing by the donor, when the donor is mentally capable of understanding the effect of the revocation.
• The Enduring Power of Attorney can be revoked if an order for trusteeship is granted for the donor.
• The Enduring Power of Attorney will end if a trusteeship order or a certificate of incapacity is made in respect of the attorney (or the last remaining attorney if there was more than one).
• The Enduring Power of Attorney ends on the death of the donor or the attorney or last remaining attorney if there was more than one.

Unless the power of attorney is expressed to be irrevocable, the document creating the Enduring Power of Attorney cannot exclude the possibility of any of the above events taking place. For example, the document cannot state that if an order of trusteeship is granted for a donor, the power of attorney will continue.

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Updated: October 24, 2003
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