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RSNL1990 CHAPTER E-11

ENDURING POWERS OF ATTORNEY ACT

Amended:

1997 c13 s19; 2001 c22 ss3&4; 2009 cP-46.1 s27;
2012 c4 (2012 c45);

CHAPTER E-11

AN ACT RESPECTING ENDURING POWERS OF ATTORNEY

Analysis



Short title

        1. This Act may be cited as the Enduring Powers of Attorney Act.

1990 c15 s1

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Interpretation

        2. (1) In this Act

             (a)  "adult" means a person who has reached the age of majority;

             (b)  "attorney" means the donee of an enduring power of attorney and where a power of attorney is given to more than one person, it means those persons;

             (c)  "beneficiary" means a beneficiary as referred to in section 146.4 of theIncome Tax Act (Canada );

             (d)  "cohabiting partner" means either of 2 persons who have cohabited in a conjugal relationship outside of marriage for at least one year;

             (e)  "court" means the Trial Division;

             (f)  "designation agreement" means an agreement which designates 2 adults as the legally authorized representatives of a designator who may act as holders of the designator's RDSP;  

             (g)  "designate" means a person who has been named in a designation agreement;

             (h)  "designator" means an adult who qualifies for and is the beneficiary of an RDSP; 

              (i)  "holder" means a holder as defined in section 146.4 of the Income Tax Act (Canada );

              (j)  "legal incapacity" means mental disability of a nature

                      (i)  such that were a person to engage in an action he or she would be unable to understand its nature and effect, and

                     (ii)  that would, but for this Act, invalidate or terminate a power of attorney, RDSP or another legal agreement;

             (k)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

              (l)  "RDSP" means a Registered Disability Savings Plan established and administered under the Canada Disability Savings Act (Canada) and the Income Tax Act (Canada); and

           (m)  "spouse" means either of 2 persons who are married to each other.

             (2)  This Act, except sections 15 to 22, applies only to a power of attorney that authorizes the management of the estate of a donor.

             (3)  A power of attorney that is intended to be exercised in the event of the donor's subsequent legal incapacity or that is intended to continue notwithstanding the donor's subsequent legal incapacity is not terminated by reason only of subsequent legal incapacity that would, but for this Act, terminate the power.

             (4)  A designation agreement is not invalid by reason only that

             (a)  a designator lacks legal capacity at the time the agreement is executed; or

             (b)  a designator lacks legal capacity subsequent to the execution of the agreement

where that designation agreement is expressed or intended to be executed or to continue notwithstanding the designator’s legal incapacity.

2012 c4 s1; 2012 c45 s1

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Enduring power of attorney

        3. (1) A power of attorney, signed by the donor and witnessed by a person who is not the person named in the enduring power of attorney as the attorney or the spouse or cohabiting partner of that person, which contains a provision expressly or impliedly stating that it may be exercised during the legal incapacity of the donor, is an enduring power of attorney.

             (2)  A person shall be 19 years of age or older in order to be named as an attorney in an enduring power of attorney.

             (3)  An attorney shall not appoint another person to perform the attorney's functions or to exercise his or her powers as an attorney.

1990 c15 s3; 2001 c22 s4

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Waiver

        4. This Act applies to all enduring powers of attorney notwithstanding an agreement or a statement in the enduring power of attorney to the contrary.

1990 c15 s4

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Powers of attorney exercisable while donor without capacity

        5. A provision in a power of attorney expressly stating that it may be exercised during a subsequent legal incapacity of the donor is valid and effectual, subject to those conditions and restrictions that are contained in it and are not inconsistent with this Act.

1990 c15 s5

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Best interests of donor

        6. (1) An attorney shall exercise his or her powers in the manner that protects the best interests of the donor, and where the attorney fails to do so, the attorney shall be liable to compensate the donor for loss occasioned by the attorney's failure.

             (2)  An attorney shall be considered to be a trustee of the property of the donor.

             (3)  Notwithstanding subsection (1), where an attorney proves to the satisfaction of the court that he or she has acted honestly, reasonably and in good faith, the court may relieve the attorney from personal liability either wholly or partially.

1990 c15 s6

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Liability of attorney

        7. Where an enduring power of attorney is terminated or revoked or becomes invalid and the attorney

             (a)  acts in good faith;

             (b)  did not know and could not reasonably be expected to know of a termination or revocation or invalidity of the enduring power of attorney; and

             (c)  acts in keeping with the terms of the enduring power of attorney

for the purpose of determining the liability of the attorney he or she shall be considered to have had the authority to act.

1990 c15 s7

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Effect of termination

        8. (1) Where an enduring power of attorney is terminated or revoked or becomes invalid and a person who did not know and could not reasonably be expected to know of the termination, revocation or invalidity deals with the attorney the transaction shall, in favour of that person, be considered to be valid.

             (2)  Notwithstanding subsection (1), where the donor

             (a)  has expressly terminated the authority of his or her attorney; and

             (b)  given notice of the termination to the attorney,

the donor's liability to a person for the subsequent acts of the attorney shall be determined without reference to this Act.

             (3)  Where

             (a)  the authority of an attorney to act on behalf of his or her donor is terminated;

             (b)  the attorney purporting to act for his or her donor enters into a transaction with a 3rd person;

             (c)  the rights of a subsequent person are dependent on the validity of the transaction entered into by the attorney with the 3rd person; and

             (d)  the subsequent person, at the material time, did not know and could not reasonably be expected to know of the termination of the authority of the attorney,

for the purpose of determining the rights and obligations of the donor in relation to the subsequent person, the 3rd person shall be considered not to have known of the termination.

1990 c15 s8

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Substitution of attorney

        9. (1) Where a donee of an enduring power of attorney becomes legally incapacitated, a person having an interest in the estate of the donor, or another person permitted by the court, may apply to the court for an order substituting another person for the attorney named in the enduring power of attorney.

             (2)  The public trustee may apply to the court for an order substituting another person for the attorney named in the enduring power of attorney where it appears to him or her to be in the best interests of the donor or the donor's estate.

             (3)  The attorney may apply to the court for an order substituting another person as attorney on giving notice to all persons having an interest in the estate of the donor.

1990 c15 s9; 1997 c13 s19; 2009 cP-46.1 s27

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Accountability of attorney

      10. (1) A person with an interest in the estate of the donor, or another person permitted by the court, may, where the donor is legally incapacitated, apply to the court for an order requiring the attorney to submit his or her accounts for a transaction involving the estate of the donor.

             (2)  Where an order is made under subsection (1), the attorney shall file his or her accounts in the registry of the court and the proceedings and practice upon that filing shall be the same as for the filing of an executor's or administrator's account under the Judicature Act .

             (3)  For the purpose of subsection (1), the public trustee shall be considered to be a person with an interest in the estate of the donor.

1990 c15 s10; 2009 cP-46.1 s27

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Powers of donor during legal capacity

      11. (1) A donor may revoke or terminate an enduring power of attorney at any time while the donor has legal capacity.

             (2)  A donor may change the attorney named in the enduring power of attorney while the donor has legal capacity.

1990 c15 s11

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Letters of guardianship

      12. A person named as an attorney under an enduring power of attorney that has not been validly witnessed but otherwise complies with section 3 may apply to the court, under section 3 of the Mentally Disabled Persons' Estates Act, for an order appointing the attorney as guardian of the estate of the donor.

1990 c15 s12

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The Mentally Disabled Persons' Estates Act

      13. (1) Where a donor of an enduring power of attorney wishes to exclude the application of section 20 of the Mentally Disabled Persons' Estates Act he or she shall so state in the enduring power of attorney.

             (2)  Where the donor has failed to state that section 20 of the Mentally Disabled Persons' Estates Act does not apply, the attorney or the public trustee may apply to the court for a ruling as to who shall manage the estate of the donor and the court shall determine on the basis of administrative convenience who shall have the management of the estate.

1990 c15 s13; 2009 cP-46.1 s27

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Trustee Act

      14. Section 3 of the Trustee Act does not apply to

             (a)  a designation agreement unless the designates under that agreement have been authorized in it to receive payments from an RDSP; or

             (b)  an enduring power of attorney unless the donor of the power of attorney states that it is to apply.

2012 c4 s2

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Designation of legally authorized representatives

      15. (1) Where an adult wishes to establish an RDSP but that adult may lack the legal capacity to do so, the adult may execute a designation agreement to designate persons as his or her legally authorized representatives, and those persons may act as holders of the adult's RDSP.

             (2)  In deciding whether an adult who may lack legal capacity to enter into an RDSP has the capacity to enter into a designation agreement, all relevant factors shall be considered, including

             (a)  whether the adult communicates, orally or otherwise, a desire to enter into the RDSP and the designation agreement;

             (b)  whether the adult demonstrates preferences and can express feelings of approval or disapproval;

             (c)  whether the adult is aware that entering into a designation agreement or changing or revoking it means that the designates may make, or stop making, decisions or choices that affect the adult as they relate to the RDSP; and

             (d)  whether the adult has a relationship with the persons who are intended to be designates that is characterized by trust.

             (3)  Where an adult cannot satisfy subsection (2), that adult is not entitled to appoint designates under a designation agreement, but that adult, the parents or guardians of that adult, the spouse or cohabiting partner of that adult, or a child of that adult who has reached the age of majority may apply to court for an order appointing the public trustee as the designate of the adult under a designation agreement, and the court may issue that order where it is in the best interests of the adult to do so.

             (4)  Execution of a designation agreement is not alone presumptive proof that an adult is a mentally disabled person as referred to in the Mentally Disabled Persons' Estates Act.

             (5)  A designation agreement executed under the authority of this Act shall relate only to the operation of the RDSP and matters relating to it, and shall not otherwise affect the capacity of the adult for whose benefit it has been executed or that adult's ability to deal with his or her assets or that adult's capacity for making decisions in other matters, including health care.

2012 c4 s3; 2012 c45 s2

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Designation agreement

      16. (1) A designator who satisfies the requirements of section 15 may enter into a designation agreement by designating 2 adults who shall be that designator's legally authorized representatives and who shall be the holders of the designator's RDSP.

             (2)  Designates may be relatives of the designator.

             (3)  Notwithstanding subsection (1), a designator may designate the public trustee as the sole designate under a designation agreement.  

             (4)  A designation agreement shall be in the form prescribed by the minister and shall be signed by the designator and

             (a)  both designates; or

             (b)  the public trustee where he or she is the sole designate under the agreement.

             (5)  A designation agreement is effective when it is filed with the public trustee, and that filing may be made by facsimile transmission or other electronic means and a copy shall be provided to the bank or financial institution which will hold the RDSP.

             (6)  A designate shall exercise his or her powers and duties under the agreement in the manner that protects the best interests of the person for whose benefit the agreement has been made, and section 6, with the necessary changes, applies to a designate under this section.

             (7)  A designate shall not appoint another person to perform his or her functions or exercise his or her duties under a designation agreement.

             (8)  A designator who has executed a designation agreement may amend that agreement at any time, and that amendment shall be executed in accordance with the requirements for executing a designation agreement under this Act.

             (9)  A designate is not, solely because of the designation, the representative of a designator or the designator's estate for the purpose of receiving payments out of the RDSP.

          (10)  Notwithstanding subsection (9), a designator may, in a designation agreement, authorize designates under that agreement, including the public trustee where the public trustee is designated as sole designate, to receive payments from the RDSP.

          (11)  Where designates are authorized to receive payments from the RDSP under a designation agreement, all payments from the RDSP shall be paid jointly to the designates, or where the public trustee is the sole designate, to the public trustee.

          (12)  Designates authorized to receive payments under a designation agreement shall only

             (a)  apply the funds received to the purposes authorized under subsection 9(1) of the Mentally Disabled Persons Estates Act; or

             (b)  invest the funds received in the securities in which trustees are authorized to invest under the authority of the Trustee Act.

2012 c4 s3; 2012 c45 s2

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Operation of designation agreement

      17. (1) Persons designated under a designation agreement shall only have authority to act when acting together and their decisions shall be unanimous. 

             (2)  Subsection (1) does not apply where the public trustee is the sole designate.

             (3)  Designates under a designation agreement shall

             (a)  act in the manner referred to in subsection (1);

             (b)  have the powers and responsibilities of a holder of an RDSP and operate the RDSP in accordance with the Canada Disability Savings Act (Canada ) and the Income Tax Act (Canada ); and

             (c)  act in the manner and with the care, diligence and skill of a reasonably prudent person in comparable circumstances.

             (4)  Designates may retain the assistance of qualified persons in doing anything required for the administration and operation of the RDSP.

             (5)  Designates are not entitled to be remunerated but may be reimbursed from the designator’s assets for 

             (a)  expenses properly incurred in retaining a person under subsection (4); and

             (b)  extraordinary expenses properly incurred in performing the duties or exercising the powers given to them under this Act. 

             (6)  Designates shall have no power or authority with respect to any other rights or assets of the designator, except those associated with the RDSP.

2012 c4 s3

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Revocation or termination

      18. (1) A designation agreement may be revoked by a designator by

             (a)  executing a subsequent agreement; or

             (b)  executing a revocation agreement in the form prescribed by the minister.

             (2)  A designation agreement is terminated upon

             (a)  the appointment of a guardian for the designator under the Mentally Disabled Persons Estates Act;

             (b)  an order of the court; or

             (c)  the death of the designator.

             (3)  Where a designation agreement has been amended, revoked, terminated or a designate has been changed, notice shall be given to the public trustee and the bank or financial institution which holds the RDSP.

             (4)  Where a designator dies, the powers of the designates as holders of the RDSP shall pass to the executor or administrator of the designator's estate.

2012 c4 s3

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Death or incapacity of designate

      19. (1) Where a designate resigns, dies or is unable to act, notice shall be given in writing by that designate or the designate’s representative to

             (a)  the designator;

             (b)  the other designate under the designation agreement;

             (c)  the public trustee; and

             (d)  the bank or financial institution which holds the RDSP.

             (2) Where a designate dies, resigns or is unable to act, the designation of the other designate is suspended and the public trustee shall act as the sole designate under the RDSP and shall administer and operate the RDSP for the time period referred to in subsection (3).

             (3)  The public trustee shall act as sole designate under the authority of this section

             (a)  until another person is designated by the designator in the manner required by this Act to replace the designate who died, resigned or was unable to act; or

             (b)  for a period of 12 months

and where another designate has not been appointed by the designator after the expiration of the 12 month period, the public trustee shall apply to court for an order under section 21 to confirm the public trustee as sole designate or to appoint an alternate designate.

             (4)  Where a new designate is designated or appointed

             (a)  the suspension of the other designate shall cease and the designates may administer and operate the RDSP in accordance with this Act; and

             (b)  the public trustee shall cease to be a designate as required by this section.

2012 c4 s3

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Monitoring of RDSP

      20. (1) The designates under a designation agreement shall annually submit to the public trustee a statement of the accounts and operations of the RDSP which the designates administer.

             (2)  In addition to the statement required under subsection (1), where designates have been authorized to receive payments from an RDSP in a designation agreement, the designates shall submit a statement to the public trustee summarizing all payments from the RDSP and the application of the funds from those payments.

             (3)  A copy of the statements required under this section shall be given to the designator and the bank or financial institution which holds the RDSP.

             (4)  Where the public trustee receives a statement under subsection (1) or (2), the public trustee may make those inquiries and require further documentation as necessary to monitor the operations of designates under an RDSP, and a person shall give the public trustee reasonable help to enable him or her to carry out his or her duties and functions under this Act and shall provide the information that he or she may reasonably require.

2012 c4 s3; 2012 c45 s2

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Application to court

      21. (1) A person, including the public trustee, may make an application to court for confirmation, variation or termination of a designation agreement, or for another order as appropriate where that person reasonably believes

             (a)  fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, amend or revoke a designation agreement;

             (b)  the making, use, amendment or revocation of a designation agreement is clearly inconsistent with the current wishes, values, beliefs or best interests of the adult who made, amended or revoked the agreement;

             (c)  there is an error in a designation agreement or an error was made in executing, witnessing or filing the agreement;

             (d)  anything improper has occurred in the making, use, amendment or revocation of a designation agreement;

             (e)  a designate is

                      (i)  abusing or neglecting the adult for whom the designate is acting,

                     (ii)  failing to follow the instructions in the designation agreement,

                    (iii)  incapable of acting as a designate, or

                    (iv)  otherwise failing to comply with the designation agreement or the duties of a designate;

             (f)  anything improper has occurred in the use of funds paid to designates from an RDSP, or where the use of those funds is contrary to this Act or to the best interests of the designator; or

             (g)  any criteria specified in the designation agreement as grounds for objection have been met.

             (2)  Where an application has been made under subsection (1), the court may

             (a)  confirm, vary or terminate the designation agreement;

             (b)  appoint alternate persons as designates, as the court considers appropriate;

             (c)  where a designate has resigned, died or is unable to act, appoint a second designate for the purpose of the operation and administration of the designation agreement;

             (d)  appoint the public trustee as the sole designate under a designation agreement;

             (e)  order the repayment of the funds improperly used by designates to the designator; or

             (f)  make those other orders that the court considers appropriate in the circumstances for the operation and administration of the RDSP.

             (3)  An order made under paragraph (2)(e) shall be enforceable as a judgment against the designates by the designator, or by the public trustee on behalf of the designator.

2012 c4 s3

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Regulations

      22. The Lieutenant-Governor in Council may make regulations

             (a)  respecting procedures and operational processes required to facilitate access to an RDSP;

             (b)  prescribing requirements for the witnessing and execution of designation agreements by adults, including witnessing and execution requirements where an adult is unable to sign;

             (c)  respecting the integration of the provisions of this Act with the operations of banks or financial institutions which will hold RDSPs; and

             (d)  generally, for the purpose and administration of this Act.

2012 c4 s3; 2012 c45 s2